1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. CIVIL WRIT PETITION No.9793/2009 Sitaram v/s Omprakash & Ors. DATE OF ORDER ::: SEPTEMBER 1st, 2009 P R E S E N T HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Shri Amit Singh Shekhawat, for petitioner. Shri B.L. Mandhana, for respondents. BY THE COURT : 1. At the request of the learned counsel for the parties, the arguments were heard and the writ petition is being disposed of finally. 2. The plaintiff petitioner filed a suit for declaration and cancellation of Will dated 8.6.2002 against the defendants in the trial court. During the pendency of that suit, the defendants No. 3 to 5 moved an application u/s 65 of the Evident Act to allow them to lead secondary evidence in respect of the document dated 27.4.2007. The trial court allowed the said application vide order dated 13.7.2009 which is impugned in this writ petition preferred by the plaintiff. 2 3. The submissions of the learned counsel for the petitioner are two folds – first is that application u/s 65 of the Evidence Act should not have been allowed in absence of notice to plaintiff u/s 66 of the Act; and second is that the document was not registered, therefore, it is not admissible in evidence. 4. The learned counsel for the respondents defended the impugned order and prayed for dismissal of the writ petition. 5. I have considered the submissions of the learned counsel for the parties in the light of reasons assigned by the trial court in the impugned order for allowing the request of defendants No. 3 to 5 u/s 65 of the Evidence Act. So far as the first submission of the learned counsel for the petitioner about notice u/s 66 of the Evidence Act is concerned, it is correct that before passing an order u/s 65 of the Evidence Act, it is necessary to serve notice u/s 65 of the Act. But so far as present case is concerned, the said compliance was made indirectly, the defendant had moved an application under O. 11 R. 12 CPC for necessary directions to Om 3 Prakash to produce the said document but he denied the possession of the said document, and on his denying, the application was dismissed. The plaintiff Sitaram, in his statement recorded before the court, denied the possession of the said document. The submission of the learned counsel for the respondents is that denial of possession of the said document by plaintiff Sitaram in his statement is sufficient compliance of section 66 of the Evidence Act and in these circumstances, even if a specific notice u/s 66 of the Act is not given, then the same is of no consequence. So far as second submission regarding registration of the document is concerned, the learned counsel for the respondents contended that the said question has not been considered and decided by the trial court in the impugned order, therefore, the same point is not involved in the present writ petition. The plaintiff may be given liberty to raise this objection as and when the document is produced in evidence. I find force in the submission of the learned counsel for the respondents. The denial of plaintiff Sitaram in his statement about possession of the document 4 dated 27.4.2007 is sufficient compliance of section 66 of the Act and so far as other objection regarding registration of the document is concerned, it will be open for the plaintiff to raise the same as and when the document is produced in evidence before the trial court. 6. Consequently, I do not find any force in any of the submissions of the learned counsel for the petitioner and the writ petition is dismissed being devoid of any merit. However it will be open for the plaintiff to raise an objection about admissibility of the document on the ground that the said document is not registered at appropriate stage. In case, the said objection is raised, then the trial court shall decide the same in accordance with law. 7. The parties are directed to bear their own costs. (Narendra Kumar Jain), J. chauhan/