Civil Revision No.7233 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.7233 of 2009 Date of decision 11.2.2010. Sukhvinder Singh and another ...... Petitioners. versus Navjot Kaur and another ...... Respondents. Present : Mr. Rakesh Gupta, Advocate for the petitioners. Mr. Rajinder Goyal, Advocate for the respondents. K.C.PURI. J. This is revision petition preferred by the petitioners against the order dated 17.11.2009 passed by Ms. Harshali Chowdhary, Civil Judge (Junior Division), Kaithal vide which the application filed by the petitioners for leading secondary evidence stood dismissed. Navjot Kaur daughter of Ramanjeet Kaur filed suit for possession claiming inheritance of Manjeet Singh alleging that Navjot Kaur is daughter of Manjeet Singh and Ramanjeet Kaur is his widow. 2/3rd share has been claimed by the plaintiff, in the property. The defendants contested the suit by alleging that Manjeet Singh executed Will dated 6.10.1987 bequeathing all his properties in favour of Parsan Kaur, his mother and mutation on the basis of said Will Civil Revision No.7233 of 2009 2 was sanctioned on 7.8.1992. The original Will was exhibited in the Family Court during mutation proceedings but the same is not forthcoming and permission has been sought by defendant-petitioner to produce the said Will dated 6.10.1987 by way of secondary evidence. The application for secondary evidence was contested by the defendants. The learned trial Court vide impugned order dismissed the application for secondary evidence. Feeling dis-satisfied with the aforesaid order of dismissal of application for secondary evidence, the present revision petition has been filed. I have heard learned counsel for both the parties and have gone through the records of the case. A similar question came up for hearing in authority Ashok Kumar Sachdeva vs. Harish Malik 2007(4) RCR (Civil 311, wherein it was observed as under : - “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 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 Civil Revision No.7233 of 2009 3 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.” The said authority was again relied upon by this Court in case Ram Pyari vs. Bhagwan Dass and others Civil Revision No.6536 of 2008 decided on 17.12.2009, accepting the said finding, this Court held that application for secondary evidence should be allowed. It has been further observed that by allowing the application for secondary evidence does not mean to admit the document. The propounder of the Will has to prove the same in accordance with law. He has to prove the loss of the document. The failure or success to prove the existence of document cannot be pre- determined without affording an opportunity. The case of the defendants Civil Revision No.7233 of 2009 4 solely based upon the Will dated 6.10.1987 alleged to be executed by Manjeet Singh. So, in these circumstances, the learned trial Court should have allowed the application to prove the Will by way of secondary evidence subject to proof of loss. In authority Nawab Singh vs. Inderjit Kaur AIR 1999 Supreme Court 1668, the Hon'ble Apex Court has held that where the tenant sought permission to produce the copy of rent note by way of secondary evidence, rejection of that application without affording to tenant an opportunity of producing secondary evidence was unjustified. The counsel for the respondent has relied upon authority Surjeet Kaur vs. Malkeet Kaur 1998(3) P.L.R. 559 and on the strength of the same, it has been argued that where the Will was shown to be oral in that case and if the existence of oral Will is not established, secondary evidence of Will was declined. In the present case, defendants are relying upon the photostat copy of the Will and according to them the original has been produced in the mutation proceedings. The mutation has also been attested on the basis of the Will. So, in those circumstances, the authority of Surjeet Kaur's case (supra) is not helpful to the case of the respondents. Authority Smt. J.Yashoda vs. Smt. K.Shobha Rani 2007(2) R.C.R.(Civil) 840 is distinguishable to the facts, as in that case, first Additional Chief Judge, City Court, Secunderabad has taken documents Ex.B-1 to B-8 as secondary evidence. Without proving the existence of original documents, the documents cannot be said to be duly proved. However, the fact remains that the party can only lead evidence in case opportunity is given to him to prove the fact that original was in existence and the same has been lost. The trial Court has not given any opportunity to the defendant to prove that Civil Revision No.7233 of 2009 5 original was in existence and the same has been lost. So, in view of the above discussion, revision petition stands accepted. The impugned order stands set aside and the application for secondary evidence stands allowed subject to proof of loss of original Will. However, it is made clear that by allowing the application, the Will in question would not be deemed to have been proved. The defendants will have to prove the Will in accordance with law proving the existence of original and loss of the same. Needless to say that the trial Court shall evaluate the evidence produced before it independently to arrive at conclusion whether Manjeet Singh has executed any Will in favour of his mother Parsan Kaur or not. With the above said observations, the revision petition stands disposed of. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE February 11 , 2010 sv