Judgment

Mrs. Archana Puri, J.

Through the present petition under Article 227 of the Constitution of India, the petitioner has assailed the order dated 29.10.2015 (Annexure P-1) passed by learned Civil Judge (Jr. Divn.), whereby, an application filed by the respondent-defendant No.1, to lead secondary evidence, was allowed.

2. The facts, as culled out from the paper-book are that petitioner plaintiff Gomti Devi had filed a suit against defendants-respondents-Balbir Singh and others, for seeking declaration that plaintiff along with proforma defendants, being the legal heirs of Sheo Ram s/o Jetha Ram, are owners with possession in equal shares of the land, as detailed in the head note of the plaint, copy whereof is Annexure P-2, on the ground of inheritance of Sheo Ram and also sought declaration, vis-a-vis, legality and validity of the alleged Will No.7 dated 13.05.1993, obtained by defendants No.1 to 3, who are brothers of the plaintiff and also challenged the mutation No.1744 sanctioned on 02.08.1993, on the basis of the aforesaid Will. Besides the same, also sought issuance of permanent injunction to restrain defendants No.1 to 3 from alienating and transferring the suit land and creating any encumbrance over it.

3. During the pendency of the suit, at the stage of recording of the evidence, respondent-defendant No.1 Balbir Singh had filed an application for seeking permission to lead secondary evidence to prove the certified copy of the Will No.7 dated 13.05.1993. In the said application, it was averred that while preparing for the evidence, the original Will was not available with respondent-defendant No.1 and he tried his best to search the original Will, but could not find the same. When this fact was brought to the notice of his counsel, it was advised that Will dated 13.05.1993, being registered document, is lying in the office of Sub-Registrar and same can be proved by way of secondary evidence, for which permission from the Court is necessary. In view of the same, respondent-defendant No.1 sought permission to be allowed to prove the Will executed by Sheo Ram, while summoning the original second copy of the Will, lying in the office of Sub-Registrar, by way of secondary evidence, original of which, has been misplaced.

4. In the application, it has also been asserted that petitioner plaintiff has also produced the certified copy of Will No.7 dated 13.05.1993 and this Will is now sought to be proved by way of secondary evidence, for the just decision of the case.

5. In reply, petitioner-plaintiff had controverted the averments and it was asserted that nowhere, in the written statement as well as other documents, it was mentioned that original Will has been misplaced and defendant No.1 has not got entered rapat or FIR in this pretext with regard to the missing of the alleged Will. It is further stated that defendant No.1 wants to fill up the lacuna and the application has been filed at a belated stage. However, in reply, it was admitted to be correct that the petitioner plaintiff had produced the certified copy of Will, which is under challenge. In the end, a prayer was made for dismissal of the application.

6. After hearing learned counsel for the parties and after going through the record of the case, vide impugned order dated 29.10.2015, the aforesaid application for leading secondary evidence was allowed.

7. Feeling aggrieved by the impugned order, present revision petition has been filed by the petitioner-plaintiff.

8. Respondent-defendant No.1 has made appearance through counsel.

9. Learned counsel for the parties heard.

10. The petitioner-plaintiff, in the suit in h