CR No.5756 of 2009 (O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on April 22,2010. Vijay Kumar Sharma --Appellant vs. Lt.Col.Suman Kumar Sharma -- Respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Harkesh Manuja,Advocate,for the petitioner Mr.Saurabh Bajaj,Advocate,for the respondent. Rakesh Kumar Jain, J, This revision is directed against order dated 16.7.2009 (Annexure P4) passed by Civil Judge (Senior Division) Karnal, by which an application filed by the petitioner to prove the Will in question by leading secondary evidence has been dismissed and review application filed against order dated 16.7.2009 has also been dismissed vide impugned order dated 16.9.2009. Capt. Ram Parkash Sharma was owner of the property in dispute. He died on 05.9.1996 but prior thereto, on 27.1.1995, he executed a Will in respect of the property in dispute to the effect that during his life time, he would remain the owner and after his death, his widow Smt.Kanta Devi would be the owner in possessiosn of the property in dispute and after CR No.5756 of 2009 (O&M) 2 her death, the property in dispute shall devolve upon his two sons in equal shares. After the death of Smt.Kanta Devi, both the brothers are entangled in this litigation. One of the brothers filed a suit for partition with a consequential relief of permanent injunction on the basis of Will. The other brother/respondent admitted execution of the Will. During the trial, when the Will was produced by the plaintiff, the respondent disputed its production, as a result of which, it was not exhibited but ordered to be marked as Mark D, which led to filing of an application for secondary evidence in order to prove photo copy of the original Will which has been marked and not exhibited . The application was contested by the defendant and the learned Court below dismissed the application holding vide its impugned order dated 16.7.2009 that once a document has been admitted, there was no need to prove it by way of secondary evidence. The petitioner then filed a review application which too, was dismissed by the trial Court vide order dated 16.9.2009. Learned counsel for the petitioner has submitted that though factum of existence of the Will is not denied by the defendant but the original which was in possession of his mother, who has since expired, has been lost and the photo copy of the same has not been allowed to be exhibited. So necessity to lead secondary evidence arises to prove the photo copy of the Will after proving the fact of loss of the original Will. It is submitted that the learned trial Court has erred in appreciating that while admitting the execution of the Will, the defendant had denied that the original Will which should have been in possession of the applicant/plaintiff, has been lost, as stated by him, therefore, it is CR No.5756 of 2009 (O&M) 3 incumbent upon the plaintiff to prove by leading secondary evidence the photo copy of the Will in terms of Section 65 of Indian Evidence Act, 1872 (hereinafter referred as the Act) ,otherwise, the right of the plaintiff would be seriously prejudiced if the said document remained marked on the record. On the other hand, learned counsel for the respondent repeated the arguments which have been the basis of passing of the impugned order that once a document has been admitted to have been executed, there is no need for the plaintiff to lead secondary evidence. I have heard learned counsel for the parties and have perused the record with their assistance. As per Section 65 (c) of the Act, secondary evidence relating to a document may be given where it is proved that original has been destroyed or lost. In the present case, the plaintiff is in possession of photo copy of the Will but the original is stated to be in possession of his mother and is not traceable after her death. Therefore, in order to prove that photo copy is of the original Will, the plaintiff has to lead secondary evidence to prove its loss so that the document which has been marked on the record may be exhibited in his evidence. In view of the above discussion, I am of the view that this revision deserves success and as such, same is hereby allowed and the impugned orders are set aside. April 22,2010 (Rakesh Kumar Jain) RR Judge CR No.5756 of 2009 (O&M) 4