IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ORDER 20.11.2008. S.B. CIVIL WRIT PETITION NO.12898/2008 HON'BLE MR. JUSTICE DALIP SINGH Shri Virendra Agarwal, for the petitioner. Heard learned counsel for the petitioner. Perused the impugned order dated 15.10.2008 by which the learned trial court has allowed the application filed under Section 65 of the Evidence Act filed by the plaintiff respondent. Learned counsel for the petitioner defendant No.1 submitted that the plaintiff has sought to produce secondary evidence in support of the Will dated 27.2.1980 whereas in the plaint the plaintiff has made an allegation that the Will was executed on 27.2.1981. It is submitted that the aforesaid Will could not been executed on 27.2.1981 as in the plaint the plaintiff has specifically stated that the testator Smt. Suraj Bai had died on 5.3.1980 itself. He submits that there is contradiction in the averments made in the plaint and in the application so far as the date of execution of the document i.e. Will of Suraj Bai is concerned. It is submitted that the learned trial court could not have therefore allowed the application for leading secondary evidence on the Will dated 27.2.1980. So far as the above, the submission of the learned counsel for the petitioner is concerned I am of the view that the matter is to be considered by the learned trial court while deciding the suit and considering the evidence and the explanation that may be submitted by the parties regarding any discrepancies in the dates of the execution of the Will and any explanation of the circumstances under which the said averments have been made in the plaint etc. Any expression of opinion by this court at this stage in this writ petition could affect the rights of either parties. It is not in dispute that the plaintiff in para 12 of the plaint has alleged that the Will dated 27.2.81 is in the custody of the defendant No.1. The Defendant No.1 in the written statement, as per the submission of the learned counsel for the petitioner has denied then possession of the Will and in these circumstances the question of first seeking production of the Will from the possession the defendant as contended by the learned counsel for the defendant petitioner does not arise as the defendant petitioner in his written statement has already denied having possession of the Will in question. In these circumstances I find that the learned trial court has not committed any error in allowing the plaintiff to lead secondary evidence in respect of the Will in question. The impugned order dated 15.1.2008 in my opinion calls for nointerference in the writ jurisdiction at this stage. However since the writ petition has not been entertained it would be open for the petitioner to raise the aforesaid plea in any appeal which may be filed in case such an eventuality arises against the judgment and decree that may be passed against the defendant petitioner. Subject to the above this writ petition is accordingly disposed of. (DALIP SINGH),J. Ramchandrkhatri,PS