IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.6207 of 2010 (O&M) Date of Decision : 27.9.2010 Mr.Harreet Singh ....Petitioner Versus Smt. Manpreet Kaur ...Respondent CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr.R.S.Rai, Sr. Advocate with Ms.Meenakshi Dogra, Advocate for the petitioner. Mr.Vikas Bahl, Advocate for the caveator-respondent No.1. ..... MAHESH GROVER, J. The petitioner is aggrieved by the orders dated 7.8.2010 and 15.9.2010 by which his prayer for adducing additional evidence has been declined. The petitioner is plaintiff in a suit filed against the respondent. In the suit certain claim has been made to the properties described in the plaint which are said to have been inherited by the said petitioner from his mother who expired on 5.5.2001. The petitioner pleads that he succeeds to the estate of his mother on the basis of a Will. During the course of proceedings an application was moved by the petitioner for producing the Will which according to him was lost and a DDR has been recorded regarding its loss at Barnala on 17.6.2002. An application to lead secondary evidence was C.R.No.6207 of 2010 (O&M) -2- first moved by the petitioner on 10.2.2007 which was allowed by the court and resulted in filing of C.R.No.2910 of 2007 by the present respondent. The court while accepting the revision observed as follows :- “When the facts of the present case are seen, it transpires that the respondent-plaintiff withheld the documents from the Court and also the information regarding its loss even though the entire suit was founded on the sole premises of the Will. The petitioner who was defendant No.1 before the trial court moved an application seeking the production of the Will from the respondent and in response thereof, it was the consistent representation made by the respondent that he shall produce the Will before the conjuring up of the DDR of the year 2002.” The aforesaid observations were prompted from the facts which were brought to the notice of this Court that the petitioner initially stated before the trial court that he will produce the Will and subsequently set up a plea of its loss. This Court on finding that the ingredients of Section 65 of the Evidence Act were conspicuously absent, allowed the revision petition and set aside the order of the trial court by which it has granted the prayer of the petitioner for leading secondary evidence which is photo copy of the Will. The petitioner thereafter moved another application seeking review of the order of this Court passed on 26.8.2008 by pleading that the trial court be directed to consider the application in the eventuality of one C.R.No.6207 of 2010 (O&M) -3- being moved by the petitioner, upon which this court observed vide its order dated 15.10.2009 that the court cannot deal in the eventualities which are not in existence and while disposing of the application declining the clarification of its own order dated 26.8.2008 observed that if any potential application comes into existence the trial court is free to dispose of the same in accordance with law. The petitioner thereafter moved the instant application upon which the impugned order has been passed once again invoking the powers of the trial court under Section 65 of the Evidence Act. The prayer has been declined which is the cause of grievance of the petitioner who contends that since the loss of document had been pleaded and the petitioner had successfully shown to the court his inability to produce the original document, therefore the prayer for secondary evidence should have been allowed. The petition is opposed by the learned counsel for respondent No.1, who is on caveat, and he while referring to the earlier orders has also referred to the provisions of Section 65 of the Evidence Act and has pleaded that photo copy prepared from the photo copy of a document cannot be permitted to be produced by way of secondary evidence, more so, when the earlier prayer has been declined. After hearing the learned counsel for the parties, I am of the opinion that there is no legal infirmity in the impugned order. This Court on an earlier occasion has noticed all the facts in their entirety while disposing of the revision petition. The subsequent order prayer for clarification was also declined and the petitioner cannot once C.R.No.6207 of 2010 (O&M) -4- again rake up the plea of leading secondary evidence when the earlier prayer has been declined and which order has attained finality as the same was not tested in further proceedings. No ground to interfere. Dismissed. 27.9.2010 (MAHESH GROVER) JUDGE dss