Civil Revision No. 2529 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 2529 of 2007 Date of decision: 28.08.2009. Amarjit Kaur ....Petitioner Versus Gurjant Singh and another ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Ms. Sonia G. Singh, Advocate, for the petitioner. Mr. Ashok Singla, Advocate, and Mr. Ravish Bansal, Advocate, for respondents No. 1 and 2. ***** VINOD K. SHARMA, J (ORAL) This revision petition is directed against the order dated 11.4.2007, passed by the learned Civil Judge (Junior Division), Barnala, vide which the application moved by the defendant/respondents for leading secondary evidence, to prove unregistered 'Will' dated 10.3.1989, has been allowed. The learned counsel for the petitioner vehemently contends, that the impugned order cannot be sustained, as the Court failed to record finding with regard to the loss of original. Section 65 of the Indian Evidence Act reads as under: - “65. Cases in which secondary evidence relating to documents maybe given. Secondary evidence may be given of the existence, condition or contents of a Civil Revision No. 2529 of 2007 -2- document in the following cases:-- (a) when the original is shown or appears to be in the possession or power-- of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it; (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d) when the original is of such a nature as not to be easily movable; (e) when the original is a public document within the meaning of section 74; (f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in 1* [India] to be given in evidence; 2*------------------------------------------------------------------ 1. Subs. by Act 3 of 1951, s. 3 and Sch., for "the States".2. Cf. the Bankers' Books Evidence Act, 1891 (18 of 1891), s. 4.32 (g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court and the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in Civil Revision No. 2529 of 2007 -3- the examination of such documents.” It is well settled law, that in order to succeed in an application to lead secondary evidence, the pre-requisite is that the applicant has to prove the existence, as well as the loss of the document, or that the original is in possession of the other party, for which notice is required to be issued, for its production and only on failure, the secondary evidence can be led. It is also well settled law, that merely allowing an application for secondary evidence does not mean that the document is to be read in evidence. But this proposition does not take away the pre-requisite of proving the fact of loss and its existence. The learned trial Court has not given any finding on this, and based its judgment on the presumption, in view of the evidence led by the parties, wherein the evidence led regarding sanction of mutation has been referred to. The order does not show, that respondent had proved the loss of the original. For the reasons stated above, this revision is allowed, the impugned order is set aside, and the case is remanded back to the learned trial Court, to adjudicate the application moved by the defendant/respondents for leading secondary evidence in accordance with law, by recording a positive finding about the loss and existence. Revision allowed. (Vinod K. Sharma) Judge August 28, 2009 R.S.