The best evidence available should be produced, and before leading secondary evidence, the existence of the original document and the procurement of the photocopy must be proven.

JUDGMENT

Alka Sarin, J. - The present revision petition under Article 227 of the Constitution of India has been filed challenging the order dated 13.01.2017 whereby the evidence of the defendant-petitioner was closed and order dated 13.02.2017 vide which the application filed by the defendant-petitioner for leading secondary evidence was dismissed.

2. The brief facts relevant to the present lis are that the plaintiffrespondent no.1 filed a petition under Section 372 of the Indian Succession Act, 1925 for issuance of Succession Certificate regarding the detailed debts and securities of Mulakh Raj Ahuja, the father of the defendant-petitioner as well as the plaintiff-respondent no.1. In response to the said petition, the defendant-petitioner filed his written statement propounding a Will. An application was filed by the plaintiff-respondent no.1 for production of the original Will alleged to have been executed by Mulakh Raj Ahuja. In response to the said application, the defendant-petitioner stated that the original Will was kept in Locker No.88 maintained by State Bank of India, G.T. Road, Main Branch, Panipat in the joint names of Mulakh Raj Ahuja and one Paramjeet Singh. It was further stated that the defendant-petitioner is the only legal heir of Mulakh Raj Ahuja and after his death he approached the Bank, however, he was not allowed to operate the locker and, hence, the defendant-petitioner was unable to produce the original Will. The said application was disposed off by the Trial Court vide order dated 21.09.2016 wherein an undertaking was recorded on behalf of the defendant-petitioner that as and when he comes in possession of the Will after permission to operate the locker is granted, the same would be produced before the Trial Court. The evidence of the defendant-petitioner was closed vide impugned order dated 13.01.2017 since despite numerous opportunities evidence was not led. Thereafter, an application for leading additional evidence by way of secondary evidence was filed by the defendant-petitioner which was also dismissed vide the impugned order dated 13.02.2017.

3. On 11.10.2018 the following order was passed by this Court :

'The dispute in this case only being with regard to the operation of the bank locker allotted to the father of the parties to this lis, both the parties, i.e. the petitioner as also respondent no.1 (brother and sister), are directed, in terms of the decree of the learned trial court, to go to the State Bank of India, (Main Branch) at G.T. Road, Panipat, on 17.10.2018 at 11.00 a.m., so that the locker is opened.

Mr. Viranjeet Singh, Advocate, who is present in Court, is appointed as a Local Commissioner, who would, in the presence of the Branch Manager of the Bank, see that the locker is opened, with the entire proceedings videographed by him, also capturing in the video recording the contents of the locker and all contents as are taken out, till the time they are put back and the locker is again locked.

The fee of the Local Commissioner is fixed at Rs.11,000/, to be shared equally by both the parties.

Adjourned to 25.10.2018.

The Branch Manager is also directed that if neither of the two parties produces the key that would have normally been with the father of the parties, he being the operator of the locker, then the locker would be opened by the Branch Manager in the presence of the parties and the learned Local Commissioner, with any master key etc. i.e. by the procedure normally taken by the bank to open a locker when one of the keys is lost.

A copy of this order be given to the learned counsel for the parties, as also to the learned Local Commissioner, under signatures of the Bench Secretary."

4. Thereafter in the order passed on 25.10.2018 it was noticed that the locker, which was broken open as directed by this Court, was found containing only one cheque book bearing Sr. No.699821 to 699840, one pay slip in the name of Paramjit Singh and 7 pay-in slips of the State Bank of India, Punjab National