Civil Revision No.3783 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.3783 of 2011(O&M) Date of Decision: June 2, 2011 Chiman Kumar alias Channi .....Petitioner v. Gulshan Kumar .....Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.R.K.Girdhar, Advocate for the petitioner. ..... RAM CHAND GUPTA, J.(Oral) C.M.No.14834-CII of 2011 Application is allowed subject to all just exceptions. Civil Revision No.3783 of 2011 The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 27.4.2011, passed by learned Civil Judge, Junior Division, Faridkot, vide which application filed by petitioner-plaintiff for leading secondary evidence has been dismissed. I have heard learned counsel for the petitioner and have gone through the whole record carefully including the impugned order passed by learned trial Court. Facts relevant for the decision of present revision petition are that petitioner-plaintiff filed a suit for declaration to the effect that he is in exclusive ownership and in possession of the property in dispute, which was earlier owned by his deceased father, Shri Murlidhar, being his only Civil Revision No.3783 of 2011(O&M) -2- son on the plea that defendant, who is brother and other son of deceased, Murlidhar, was disinherited from the property vide affidavit dated 18.8.2004 and the Will dated 21.5.2005 in favour of respondent-defendant is a forged and fabricated document. Murlidhar had died on 16.12.2005 leaving behind petitioner-plaintiff and respondent-defendant as his sons and Smt.Gopali Devi as his widow, who also expired on 10.6.2007. Suit was contested by respondent-defendant on the ground that his deceased father executed a valid Will dated 21.5.2005 in his favour and that petitioner is having no right to challenge the said Will. Issues were framed. Case was at the stage of evidence of petitioner-plaintiff when the present application was filed for permission to lead secondary evidence of alleged affidavit dated 18.8.2004 by producing photo-copy of the said affidavit on the plea that original is not available as the same was given by father of petitioner-plaintiff to some Press Correspondent/Agent of the Newspaper. The said application was declined by learned trial Court by placing reliance upon Smt.J.Yashoda v. Smt.K.Shobha Rani, 2007(2) RCR (Civil) 840 (SC). It has been contended by learned counsel for the petitioner- plaintiff that at this stage, petitioner-plaintiff has been, prima facie, able to show that an affidavit was sworn by his deceased father, which was attested by Notary public and photostat copy of the same is in his possession and hence, learned trial Court has committed illegality in declining the request of petitioner-plaintiff to produce the same in evidence by way of secondary evidence. He has also placed reliance upon Kuldip Kaur v. Chattar Singh and another, 2008(3) RCR (Civil) 463. However, learned trial Court has rightly observed that Civil Revision No.3783 of 2011(O&M) -3- petitioner-plaintiff has taken the very vague plea regarding the fact that the affidavit was sworn by deceased father of the parties and the same was given to some newspaper agent vide which respondent-defendant was disinherited from the suit property, owned by father of the parties. No such name of any agent of the newspaper and no such cutting of the alleged newspaper has been produced. Even it has not been mentioned as to when and how the petitioner-plaintiff has came into possession of the photostat copy of the alleged affidavit. Moreover, it has also been rightly observed that affidavit is not legally recognized mode of disinheriting a legal heir of the property. Respondent-defendant has placed reliance upon a Will, allegedly executed in his favour by his deceased father. There is no subsequent Will in favour of present petitioner-plaintiff. Petitioner-plaintiff is to show prima facie the existence of original affidavit and its loss. Moreover, it has been held by Hon'ble Apex Court in Smt.J.Yashoda's case (supra) that photostat copies of original cannot be received as secondary evidence in terms of Section 63 of the Indian Evidence Act, 1872. In so far as Kuldip Kaur'case (supra) is concerned, on which reliance has been placed by learned counsel for the petitioner, the facts in that case are different as in that case dispute was regarding proving the Will and copy from the extract of the register of deed writer was produced. The deed writer was produced and sufficient basis was made out by the petitioner in that case to show existence of original document and there was specific averment that the original was lost and that the document also was concededly in possession of the petitioner in that case. However, in this case, there is nothing to show that original Civil Revision No.3783 of 2011(O&M) -4- affidavit was of the possession of the petitioner-plaintiff. Rather the plea is that the same might have been handed over to some agent of the newspaper. In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Moreover, law has been well settled by Hon'ble Apex Court in Surya Dev Rai v. Ram Chander Rai and others, 2003(6) SCC 675 : AIR 2003 SC 3044: 2004(1) RCR (Civil) 147, that supervisory jurisdiction is not available to be exercised for indulging in re-appreciation or evaluation of evidence or correcting the errors for drawing inference like a Court of appeal. It has been observed as under:- “Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.” Hence, the present revision petition is, hereby, dismissed being devoid of any merit. 2.6.2011 (Ram Chand Gupta) meenu Judge