IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No.242 of 2008. Date of decision:6.3.2009 Nand Lal Saxena …Petitioner Versus Shakuntla Devi …Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Petitioner: Mr.Bimal Gupta, Advocate. For the Respondent: Mr.Ramakant Sharma, Advocate. Dev Darshan Sud,J. The plaintiff has preferred this petition under Article 227 of the Constitution of India challenging the order dated 18th July, 2008 dismissing the application filed by the plaintiff under Section 65 of the Indian Evidence Act, 1882 (hereinafter referred to as the `Act’) seeking permission to prove the will executed by Shri Ram Chander, which according to the plaintiff was crucial for the determination of the controversy for determination before the learned trial Court. Prior to the present proceedings under Section 65 of the Act, the plaintiff had filed an 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 application under Order 7 Rule 14 of the Code of Civil Procedure for permission to place on record copy of the will dated 8.6.1965 (which is also the subject matter of present proceedings). That application having been rejected, the plaintiff approached this Court by way of CMPMO No.49 of 2008. This Court noticed that the plaintiff herein had put up a claim for purchasing the land from Shri Ram Chander, who according to the plaintiff-petitioner had inherited that land by virtue of the disputed will. An issue was also settled and the onus naturally being on the plaintiff. After the parties had concluded their evidence, the plaintiff moved the application under Order 7 Rule 14 of the Code of Civil Procedure. This Court dismissed the petition, but observed:- “… … … Even otherwise, photo copy of the Will being secondary evidence cannot be permitted to be placed on re cord till the plaintiff seeks permission of the Court to lead secondary evidence. This application was therefore totally misconceived and the order of the learned trial Court is upheld. I have been told that the case is fixed for arguments. It is made clear that the plaintiff, if the case is decided against him, may move appropriate application before the appellate Court for leading additional evidence who shall consider the same in accordance with law.” 3 Not being satisfied, the plaintiff again filed an application under Section 65 of the Act which has been dismissed by the learned trial Court. The order passed by the learned trial Court cannot be faulted with. It is strange that the plaintiff having been permitted to lead additional evidence at the appellate stage, chose to rush and file an application under Section 65 of the Act, but I need not go into this aspect any further. Admittedly, the case is now at the stage of arguments and permitting evidence to be led at this stage would inter alia amount to having the entire trial reopened which course cannot be countenanced. Of- course this is not to say that even at the stage when the case is fixed for arguments, no application etc. can be moved. Without going into the controversy any further, this petition is disposed of. It will be open to the petitioner herein to challenge the order rejecting his application under Section 65 of the Act in appellate proceedings should the case be decided against him. It will be open to him to urge that the rejection of the application inter alia has caused material prejudice to the case of the plaintiff. Costs on parties. Parties are directed to appear before the learned trial Court on 4.5.2009, which thereafter shall 4 proceed with the matter. Record, if any, received be sent back to the learned trial Court immediately. CMP No.643 of 2008. The order dated 11.8.2008 is vacated. This application is disposed of. March 6, 2009. (Dev Darshan Sud) (aks) Judge.