The best evidence available should be produced before resorting to secondary evidence.

ALKA SARIN, J.

1. The present revision petition under Article 227 of the Constitution of India has been preferred by the plaintiff-petitioner challenging the order dated 10.08.2018 whereby an application filed by defendant-respondent No.1 on behalf of defendant-respondent Nos.1, 3 to 5 for leading secondary evidence qua Will dated 18.07.1988 (Ex.P/13) has been allowed.

2. The brief facts relevant to the present lis are that the plaintiff-petitioner filed a suit for declaration to the effect that the plaintiff-petitioner and the proforma-defendant/respondent Nos.3 to 5 are joint owners in possession to the extent of 1/12th share each and that defendant-respondent Nos.1 and 2 to the extent of 1/3rd share each in respect of land measuring 171 Kanal 07 Marlas as fully described in the plaint as well as for declaration that Will dated 18.07.1988 (Ex.P/13) and the revenue entries and the mutation (Ex.P/2) made on the basis of the Will are illegal, null and void and not binding on the rights of the plaintiff-petitioner. A written statement was filed on behalf of defendant-respondent Nos.1, 3, 4 and 5 wherein it has been stated that Badlu had executed a Will dated 18.07.1988 (Ex.P/13) in favour of defendant-respondent Nos.1 and 2 and that the said Will was in possession of defendant-respondent No.2 whereas photostat copy of the Will was in possession of defendant-respondent No.1. An application was filed for leading secondary evidence to prove the Will dated 18.07.1988. In the application it is stated that the original Will was with defendant-respondent No.2. It is further averred that an application has been filed by defendant-respondent Nos.1, 3 to 5 directing defendant-respondent No.2 to produce the original Will dated 18.07.1988. However, a reply was filed by defendant-respondent No.2 stating that the Will was not in his possession and that the Will was forged and fabricated. Hence, defendant-respondent Nos.1, 3 to 5 sought to prove the Will by way of secondary evidence. A reply was filed to the said application. Vide the impugned order the application was allowed. Hence, the present revision petition.

3. Learned counsel for the plaintiff-petitioner would contend that the Will sought to be produced as secondary evidence is only a photocopy and the original has never seen the light of the day. It is further the contention that photostat copies of the original cannot be received as secondary evidence in terms of Section 63 of the Evidence Act, 1872. In support of his argument, learned counsel has placed reliance on Smt. J. Yashoda Vs. Smt. K.Shobha Rani [2007 (2) RCR (Civil) 840], Harmanjit Kaur Vs. Jarnail Singh [2014 (3) RCR (Civil) 1638], Hira Singh & Anr. Vs. Ajit Singh [2017 (4) PLR 446] and M/s Parkash Chand Kapoor Chand Vs. Inderjit Singh & Ors. [2006 (3) RCR (Civil) 700).

4. Per contra, learned counsel for defendant-respondent Nos.1, 3 to 5 has contended that the original Will is in possession of defendant-respondent No.2 and that an application has also been filed by the defendant-respondent Nos.1, 3 to 5 for production of the Will. However, it was denied that the Will was in possession of defendant-respondent No.2. It is further the contention that in view of the fact that the original Will was in possession of some other person, the defendant-respondent Nos.1, 3 to 5 were well within their right to file an application for secondary evidence for proving the document.

5. I have heard the learned counsel for the parties.

6. Section 63 and 65 of the Evidence Act, 1872 read as under :

“63. Secondary evidence. - Secondary evidence means and includes-

(1) Certified copies given under the provisions hereinafter contained;

(2) Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;

(3) Copies made from or compared with the original;

(4) Counterparts of documents as against the parties who did not execute them;

(5) Oral accounts of the contents of a docume