ORDER :

Subodh Abhyankar, J.

This petition has been filed under Article 227 of the Constitution of India by the petitioner/plaintiff against the order dated 12-4-2022, passed in Case No. 51-A/2020 by the Fifth Civil Judge, Senior Division, District Ujjain, whereby the application filed by the respondents/defendants under section 65 of the EVIDENCE ACT , 1872 (hereinafter referred to as ‘the EVIDENCE ACT ’) has been allowed (Annexure-P-1).

2. Brief facts of the case are that the petitioner has filed a suit for declaration, injunction, and partition against the respondents/defendants. According to the plaint, the disputed property belonged to one Sumitrabai, who happens to be the mother of the plaintiff, wife of defendant No. 1, and mother of defendants No. 2 and 3. Plaintiff’s contention is that the property is purchased by Sumitrabai from her joint family’s income. The suit is at the stage of recording evidence, and defendants’ evidence is being recorded. In contrast to the plaintiff’s case, in their written statement, the defendants’ contention is that late Sumitrabai left behind a Will dated 25-8-2012, on the basis of which they are claiming their rights. Thus, to bring the original Will on which the reliance has been placed by the defendants, an application under Order 11, Rule 14 of CPC was filed by the plaintiff, seeking a direction to the defendants to produce the original Will dated 25-8-2012. The aforesaid application was allowed by the trial Court vide order dated 17-8-2015, and the defendants were directed to produce the original Will. However, on 8-10-2015, an affidavit was filed by the defendants, stating that the aforesaid Will is lost somewhere, and they have also made a complaint at the Police station, Dewas, a copy of which was also filed along with the affidavit.

3. During the course of hearing of this affidavit, counsel for the defendants also submitted before the trial Court that since the photo copy of the Will is already on record, the same may be considered as secondary evidence of the original Will, and the Court, vide its order dated 8-10-2015 has also accepted the aforesaid submission to accept the aforesaid Will as secondary evidence.

4. Subsequently, the plaintiff filed an application under section 151 of the CPC on 3-11-2015, for recall of the aforesaid order dated 8-10-2015, on the ground that defendants have not even filed a formal application for treating the aforesaid Will as secondary evidence, which according to the plaintiff was a forged document, thus, it was prayed that the order dated 8-10-2015 be recalled,. The aforesaid application was decided by the learned Judge of the trial Court vide order dated 11-4-2016, holding that the Will can be used as a secondary evidence by the plaintiff, but it cannot be used as a secondary evidence by the defendants in the light of section 65(a) of the EVIDENCE ACT , and the application was rejected. However, on an application filed on behalf of the defendants under section 65 of the EVIDENCE ACT , stating that since the original Will has already been lost, and the defendants have also lodged a complaint in the concerned Police station, they may be allowed to produce the photocopy of the aforesaid Will in secondary evidence under section 65(c) of the EVIDENCE ACT . The aforesaid application was opposed by the plaintiff contending that the photocopy of the Will cannot be accepted as a secondary evidence, but rejecting such contention, the learned Judge of the trial Court has allowed the application filed by the defendants by the impugned order dated 12-4-2022. Being aggrieved of the same, this petition has been filed by the petitioner/plaintiff.

5. Counsel for the petitioner ha