1/5 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL WRIT PETITION NO.4595/2007 Jagdish Prasad. Versus Sh. Ram Vilas and ors. PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr.M.R.Singhvi, for the petitioners. Mr.R.K.Thanvi, for the respondents. DATE OF JUDGMENT : 7th January, 2008. JUDGMENT 1. This petition has been filed under Article 227 of the Constitution of India challenging the order dated 21.7.2007 passed by the learned trial Court in Civil Suit No.46/1980 whereby the learned trial Court rejected the application of defendant No.1 – present petitioner Jagdish Prasad raising his objection to take on record a photo-copy of the Will produced by the defendant No.4 and 5 – Ram Vilas and Radha Kishan. 2/5 2. Mr. M.R. Singhvi learned counsel for the petitioner Jagdish Prasad, defendant No.1 in the suit urges that this is second round of litigation on the question of admissibility of said secondary evidence i.e. certified photo copy of the Will in question and earlier while deciding writ petition No.855/2001 – Jagdish Prasad V/s Ram Vilas and ors on 1.5.2007, this Court had directed the original Will which was produced before this Court on 27.4.2007, to be produced in the trial Court in whatever condition it was which had been produced by the defendants No.4 and 5. This Court held that the objection raised by the present petitioner about marking exhibit on the said photo- copy of Will as was raised in absence of original Will, no more survived. Consequently, the portion of the affidavit produced in evidence sought to be deleted by the present petitioner, was not required to be deleted and the impugned order of the trial Court dated 16.1.2007, therefore, did not require any interference. The said order of this Court dated 1.5.2007 is produced as Annex.4 with the present writ petition. 3. Mr. Singhvi therefore, submits that the objection again filed by the present petitioner by way of application under Section 151 C.P.C. that in view of the original Will being available with the trial Court 3/5 now, there was no occasion for the secondary evidence in the form of certified photo copy of the Will to be marked as exhibit and therefore, the trial Court erred in rejecting the said application by the impugned order dated 21.7.2007. 4. Mr. R.K. Thanvi, the learned counsel appearing for the defendants No.4 and 5, respondents No.1 and 2 herein opposed the submissions made by Mr. Singhvi at Bar and submitted that the said secondary evidence was duly compared copy of the Will in question and therefore, could be taken into evidence and the present petitioner was merely trying to delay the proceedings in the suit by making such unnecessary application. 5. I have heard the learned counsel for the parties and perused the record. 6. In the opinion of this Court, in view of the subsequent developments in the case at the time of hearing of earlier writ petition No.855/2007 decided on 1.5.2007, in view of the fact that the original Will was produced by the respondents before this Court and later on in pursuance of directions of this Court before the trial Court, there is no occasion for the trial Court to take in evidence secondary evidence 4/5 in the form of photo copy of the Will in question. It is needless to say that when primary evidence is available, no secondary evidence can be led. 7. The secondary evidence can be produced before the Court only in the circumstances narrated in Section 65 of the Indian Evidence Act. Clause (c) of Section 65 stipulates that when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time, such secondary evidence can be produced. 8. In view of the aforesaid fact situation that the original Will has now been produced in the trial Court, there is no occasion to take in secondary evidence in the form of photo copy of the same document in question, namely, the Will. Therefore, the trial Court has erred in rejecting the application of the present petitioner by the impugned order dated 21.7.2007. 9. Accordingly this writ petition is allowed and the impugned order of the trial Court dated 21.7.2007 is quashed and set aside. No 5/5 order as to costs. Let the trial of the suit be expedited by the trial Court. (Dr.VINEET KOTHARI)J. Ss/-