The trial court erred by allowing secondary evidence regarding the Will without sufficient pleadings and at a late stage of litigation.

JUDGMENT :

Vikram Aggarwal, J.

The instant petition, preferred under Article 227 of the Constitution of India, assails the order dated 13.09.2024 (Annexure P.1) passed by the Court of Civil Judge (Junior Division) Amritsar, vide which the application filed by respondent Nos. 1 to 3/plaintiffs (hereinafter referred to as the respondent-plaintiffs) to produce secondary evidence in respect of Will dated 17.11.1979 stated to have been executed by S. Budh Singh, was allowed.

2. The facts, as emanating from the revision petition, are that a suit for separate possession by way of partition of properties fully described in the plaint, declaration and permanent injunction was instituted by the respondent-plaintiffs against the defendants (Harjinder Singh and others) and the present petitioner being defendant No.5 (hereinafter referred to as the 'petitioner-defendant).

3. Plaintiff No.1-S.Tejpal Singh; defendant No.1-Harjinder Singh and defendant No.2-Smt. Daswinder Kaur, are the sons and daughter of Amrik Singh. Plaintiff No.2-Amit Bhatia is the son of plaintiff No.1-S. Tejpal Singh and grandson of Amrik Singh. Amrik Singh is the son of Budh Singh. The other defendants are the sons and daughters of Budh Singh as also other parties. The basic claim set up was that certain properties in dispute had been purchased by Amrik Singh, whereas some properties were stated to have devolved upon him on account of Will dated 17.11.1979, having been executed in his favour by S. Budh Singh, the same having been registered on 22.01.1981. It is also claimed that Amrik Singh executed a Will dated 01.10.2012 registered on 03.10.2012 in terms of which plaintiff No.1-S. Tejpal Singh became the sole and absolute owner of the properties referred to in the said Will on the demise of Amrik Singh on 25.01.2013.

4. The suit was opposed by way of written statements (Annexures P.2 and P.3), wherein apart from other averments, execution of Will dated 17.11.1979 by S. Budh Singh was denied and it was stated that the said Will was a forged and fabricated document.

5. Issues were framed on 19.05.2017, whereafter parties led their respective evidence. When the matter was fixed for rebuttal evidence and arguments, an application (Annexure P.6) was moved by the petitioner-plaintiffs for permission to produce secondary evidence in respect of Will dated 17.11.1979 executed by S. Budh Singh. It was averred in the application that the original of the said Will was in the custody of S. Harjinder Singh (one of the defendants). It was further averred that the certified copy of the Will formed part of the judicial file on the basis of the testimony of PW5-Lalit Kumar son of Kedarnath. The said Kedarnath was stated to be an attesting witness of the said Will. It was averred that Will dated 17.11.1979 was an ancient document and its production by the plaintiffs was ruled out in the face of the original not being in his custody. It was averred that no other witness was to be examined to prove the said Will and under the circumstances, it was prayed that the said Will, certified copy of which was produced on record as PW5/2 and Xerox copy as Mark-G, be taken on record as secondary evidence

6. The application was opposed by reply (Annexure P.7) in which it was averred that the application was not maintainable at that stage and the same ought to have been filed before leading evidence. It was also averred that the plaintiff had nowhere mentioned in the plaint that the original Will was in the custody of Harj