COMMON ORDER

The instant Civil Revision Petitions have been filed against the order, dated 03.08.2018, passed in I.A.Nos.328 & 329 of 2018 in O.S.No.20 of 2014, on the file of the District Munsif, Tiruchendur.

2. The revision petitioner is the second respondent / second defendant, the respondents 1 and 2 herein are the petitioners / plaintiffs and the third respondent herein is the first respondent/ first defendant before the Court below.

3. For the sake of convenience, the parties are referred to according to their litigative status before the trial Court.

C.R.P.(MD)No.1044 of 2019

4. The plaintiffs have filed the suit for the relief of declaration and possession, and also for the prayer compelling the first defendant to produce the original Will, dated 30.07.1992, and for other reliefs.

5. It appears that, during the pendency of the said suit, the plaintiffs have filed an application under Section 151 of the Civil Procedure Code, seeking leave of the Court to mark the photocopy of the Will, dated 30.07.1992 as a document before the Court below. Such relief was prayed, on the premise that the original Will, dated 30.07.1992 is in the control and custody of the first respondent, who is none other than the father of the plaintiff. Apart from the above prayer, in order to prove such Will, the plaintiffs have already submitted the registered copy of the Will. It is the further submission of the plaintiffs that when they have taken summons to the attestors, the said summons were returned with an endorsement that those attestors were “dead”. It is also the further submission of the plaintiffs that, they have also summoned the Sub Registrar, where the said Will was registered. However, the staffs from the Sub Registrar office deposed before the Court that they were not in practice of getting signature of the attestors.

6. It is the further submission of the plaintiffs that since the attestors are not alive, now the signature of the attestors also needs to be proved. However, in the registration copy, no such signature of the attestors is available so also before the Sub Registrar office. The plaintiffs further submits that fortunately, they have the photocopy of the Will, which contains the signature of the attestors. Hence, to prove the signature of the attestors, through the phto copy of the Will, they prayed to mark the said document.

7. The said application was stoutly objected by the respondent /second defendant, on the ground that the plaintiffs though having possession of such document at the time of filing of the suit, the non filing of the said document at the earliest stage would be viewed against the plaintiffs. Further the defendant contended that only to fill-up the lacunas, such documents are attempted to be filed before this Court. Therefore, prayed to dismiss the petition.

8. After hearing both sides, the Court below has allowed the application with the finding, that unless the photocopy is produced, the plaintiffs had no opportunity to prove signature of the deceased attestors.

9. Aggrieved with the said finding, the instant Civil Revision Petition in C.R.P.(MD)No.1044 of 2019 has been filed by the second defendant.

10. The learned counsel for the second defendant (revision petitioner herein) would vehemently contend that, when the plaintiffs were in possession of the photocopy of the Will, even while filing the suit, the non production of the same would dis-entitle them to submit the same at the belated stage. It is also the further submission of the petitioner that, unless the foundation to produce the secondary evidence, the question of producing the photocopy will not arise. Therefore, contended that the very order passed by the Court below is liable to be interfered.

11. The learned counsel for the petitioner would also further submit that, the very Ruling in 2001-3-SCC-1 (Bipin Shantilal Panchal Vs. State of Gujarat and another) has no application to this case.

12. He would further submit that the above judgment has been