C.R. 6536 of 2008 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. 6536 of 2008 Date of decision:- 17.12.2009 Ram Pyari petitioner vs Bhagwan Dass and others Respondent Present: Mr.Parveen Hans, Advocate for petitioner. Mr. GP Singh, Advocate for respondents 1 and 2 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? M.M.S.BEDI,J. Vide impugned order dated 16.10.2008, the trial court has permitted the plaintiff-respondents to lead secondary evidence pertaining to Will dated 20.1.1971, purported to have been executed by Kaura Ram in their favour. Learned counsel for defendant- petitioner has vehemently contended that the trial court has acted illegally and arbitrarily in allowing the production of secondary evidence regarding Will dated 20.1.1971, which had never come into existence. Learned counsel has further argued that the photocopy of the Will has been permitted to be produced in secondary evidence, which is not permissible. In support of his contention he has placed reliance on the judgment of the Supreme Court in Smt. J Yashod v smt. K.Shobha Rani 2007(2) RCR (civil) 840 to contend that a C.R. 6536 of 2008 2 photocopy of the original cannot be received as secondary evidence in terms of Section 63 of the Indian Evidence Act. I have heard learned counsel for the petitioner as well counsel for the respondents and gone through the record available. It appears that plaintiff- respondents have filed a suit for declaration to the effect that they are the owners in possession of the land in dispute, as mentioned in the heading of the plaint and that mutation dated 15.11.1993 in favour of the defendants is wrong, based upon fraud and misrepresentation and not binding upon the rights of the plaintiff- respondents. Interestingly, they have also sought a decree for mandatory injunction against defendant No.1 Harnam Singh to the effect that Will dated 20.1.1971, executed by Kaura Ram, which is in his possession be also handed over to the plaintiffs so that the same should be produced before the revenue officers to get the mutation sanctioned and accepted according to the Will. The claim of the plaintiff- respondents rests on the establishment of their rights on the basis of the due execution, relevance, admissibility and contents of Will dated 20.1.1971, purported to have been executed by Kaura Ram. Permission of secondary evidence does not mean that a document will be deemed to have been admitted in evidence or that the finding regarding the existence of the conditions, mentioned in Section 65 of the Indian Evidence Act, would be presumed. A similar question had come up before this court in case Ashok Kumar Sachdeva vs Harish Malik 2007(4) RCR (Civil) 311,in which, in context to the secondary evidence it was held as follows:- “After hearing learned counsel for the parties, I am of the view that to prove a document by way of primary or secondary evidence is a rule of evidence. Whether the party seeking leave of the Court to lead secondary evidence ultimately C.R. 6536 of 2008 3 succeeds in proving the document or not is a question of fact and depends upon evidence. Petitioner has pleaded in the application the loss of original document. Under what circumstances document was lost is a question of fact and evidence. It is settled rule of pleadings that a party must disclose material facts and need not plead evidence. In the instant case material fact is loss of document and circumstances leading to loss is a question of evidence. This question can only be decided after providing opportunity to the party concerned to lead secondary evidence. To grant leave to lead secondary evidence does not mean the document is admitted in evidence nor it is a finding of the existence of any of the conditions included in Section 65 of the Evidence Act. It only amounts to holding an enquiry regarding existence of document or its loss under some circumstances. Failure or success to prove the existence of document or its loss cannot be pre-determined that too without providing opportunity. Whether it is proved or not, is to be seen after the leave is granted and the material/ evidence produced, is evaluated. The question raised by learned counsel appearing for the respondent is premature at this stage.” In view of the above, it is held that the plaintiff- respondents, who seek leave of the court to lead secondary evidence could ultimately succeed in this case only if they are able to prove the document by producing cogent evidence. It is made clear that order dated 16.10.2008 permitting the secondary evidence regarding the Will to be produced, will not, in any manner, tantamount to a presumption that the document had actually been executed or that the contents of the photocopy of the C.R. 6536 of 2008 4 document, which has been produced on record are per se admissible. The plaintiff- respondents will have to establish the existence of the document and the circumstances of non availability of the document. The relevance, admissibility and execution will have to be established. In view of the above circumstances, no ground is made out for interference. Dismissed. December 17 ,2009 (M.M.S.BEDI) TSM JUDGE