JUDGMENT

Raj Mohan Singh, J. - CM No. 13953-CII of 2019

Notice of this application was issued on 08.07.2019.

With the concurrence of the parties, the date of hearing is preponed and the main case is taken up today itself.

Application stands disposed of. Main case

1. Petitioner has challenged the orders dated 27.02.2017 and 17.04.2017 passed by Civil Judge (Junior Division), Chandigarh whereby opportunity to lead rebuttal evidence was declined.

2. Vide impugned order dated 27.02.2017, the application for grant of permission to allow handwriting expert to take photographs of various documents was dismissed on the ground that the plaintiff can lead rebuttal evidence only in respect of an issue, the onus of which was on the defendants it was also observed that the plaintiff has not made clear as to which document, the plaintiff wanted to take photographs and for what purpose. Handwriting expert is to be examined at the rebuttal stage.

3. Thereafter, another application was filed under Section 151 CPC on the premise that the plaintiff wishes to lead rebuttal evidence to rebut the photocopy of Will of late Sh. H.S. Sawhney as the same has been produced in the secondary evidence in pursuance of order dated 11.10.2017 passed by this Court in CR No. 3794 of 2016. Plaintiff submitted that under Order 18 Rule 3 CPC, party/defendants have led evidence in respect of Will only after taking permission for leading secondary evidence, therefore, the plaintiff is entitled to rebut the evidence of the defendants at rebuttal stage. Since the defendants have relied upon Will in their defence evidence, therefore, in addition to the cross-examination done by the plaintiff, she is entitled to lead evidence in rebuttal as well. Both the aforesaid orders were passed when CR No. 3794 of 2016 was pending in the High Court and was ultimately decided on 11.10.2017

4. Trial Court vide order dated 04.04.2014, framed the issues in the following manner:-

"1. Whether the plaintiff is entitled to declaration as prayed for? OPP

2. Whether the plaintiff is entitled to mandatory injunction as prayed for? OPP

3. Whether the plaintiff is entitled to permanent injunction as prayed for? OPP

4. Whether the present suit is not maintainable? OPD

5. Whether the plaintiff has not affixed the ad valorem Court fee? OPD

6. Whether this Court has no jurisdiction to try the present suit? OPD

7. Relief"

Perusal of the aforesaid issues would show that onus to prove issue No. 1 was on the plaintiff.

5. This Court while deciding CR No. 3794 of 2016 has observed in para Nos. 24, 25 and 26 in the following manner:-

"[24]. The facts involved in the present case are somewhat different. The prayer in terms of Section 65 of the Act has been allowed by the impugned order. It will not dilute the rigor of proving the execution of the document, admissibility and validity thereof. The Court would apply its mind as regards execution, validity and genuineness and admissibility of the document at a later stage. The impugned order commenting conclusiveness, if any, in the aforesaid context has to be ignored and diluted. The photostat copy of document can be produced in evidence only when it is alleged and proved that the original was in existence and the same has been lost or destroyed or is in possession of the opposite party, who failed to produce it, or any other circumstances mentioned in Section 65 of the Act. These facts are fundamental to the controversy and would be tested with reference to the material on record at an appropriate stage on merits.

[25]. At this stage, only an enquiry in terms of Section 65 of the Act is pending. These facts can be established at a later stage when the Court will apply its mind on merits, however photostat copy of the document may or may not come within the definition of secondary evidence as contained in Section 63 of the Act. There cannot be any straight jacket formula by any defined words and answers because photostat copy may or may not carry the probative value of such a