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2011 DIGILAW 1748 (PNJ)

Kamlesh Rani v. Sukhdev Nagpal

2011-09-14

KANWALJIT SINGH AHLUWALIA

body2011
JUDGMENT KANWALJIT SINGH AHLUWALIA 1. The present revision petition has been filed impugning the order dated 07.09.2010 passed by the Court of Civil Judge (Junior Division), Karnal whereby the application of the petitioner to lead secondary evidence was declined. 2. The petitioner had filed an application (Annexure P-3) in the suit for mandatory injunction filed by the plaintiff-respondent that she has become absolute owner of the property as deceased-Smt. Ram Bai had executed a Will dated 29.11.1981 in her favour. It was stated in the application (Annexure P-3) that the original Will had lost in the Court premises and same could not be traced out and regarding the loss of Will a DDR was recorded in Police Post, Sector -13, Urban Estate, Karnal. The trial Court had dismissed the application for proving the Will by leading secondary evidence for the reason that the petitioner-defendant had availed six effective opportunities and the application should have been filed at the first instance. Furthermore recording of Daily Dairy Report was construed by the trial Court as an afterthought. It is not disputed that the factum of Will was pleaded in the written statement and photocopy of the same was also annexed. However, Mr. J.K. Goel, Advocate has stated that earlier petitioner had filed a reply to the legal notice and in that reply no averment regarding existence of the Will was made. Furthermore, regarding the execution of the Will no question was put to the witness in the cross-examination. 3. Having heard counsel for the parties, this Court is of view that loss or destruction of a Will in itself is one fact which is required to be determined by the Court after the parties lead evidence to this effect. Once loss and destruction is proved, then only the Court has to decide the other issue whether the document can be proved by way of secondary evidence or not. The above said view is fortified in view of the ratio of law laid down in "Ashok Kumar Sachdeva v. Harish Malik", (P&H) 2007 (4) R.C.R. (Civil) 311, wherein it was held as under:- "5. 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. 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 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 indicated in Section 65 of the Evidence Act. It only amounts to holding an enquiry regarding existence of document and 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." 4. Furthermore, it was further held in "Kuldip Kaur v. Chattar Singh", (P&H) 2008 (3) R.C.R. (Civil) 463, that once a document is taken into consideration by way of secondary evidence it will always be open for the parties to assail the validity of the document or as to what value is to be attached to such a document. In Kuldip Kaur (supra), it was held as under:- "4. Mr. Sudeep Mahajan, however, would seriously contest the contention raised by counsel for the petitioner and would say that sufficient basis have not been provided by the petitioner to entitle him to lead the secondary evidence in regard to the documents. In Kuldip Kaur (supra), it was held as under:- "4. Mr. Sudeep Mahajan, however, would seriously contest the contention raised by counsel for the petitioner and would say that sufficient basis have not been provided by the petitioner to entitle him to lead the secondary evidence in regard to the documents. He has made reference to Ashok Dulichand v. Madahavlal Dube and another, (1975) 4 Supreme Court Cases 664 and J. Yashoda v. Smt. K. Shobha Rani, 2007 (2) RCR (Civil) 840: 2007 (1) RCR (Rent) 466: 2007 (2) RAJ 607: 2007(3) Civil Court cases 195 (SC) to say that photostat copies of the documents were not allowed as secondary evidence in these cases on the ground that the petitioners therein could not show how the photostat copies were got made, when the original was not in the possession of the party. That requirement may not apply to the facts of the present case. In regard to one document, certified copy of the registered will has been placed on record. There is no objection made to production of this document by the counsel for the respondents as secondary evidence. The second will also concededly was in the possession of the petitioner and as such, he could have had the occasion to make photocopy thereof. Accordingly, the observations in the cases of Ashok Dulichand and J. Yashoda (supra) would not apply to the facts of the present case. The petitioner has laid sufficient basis to show existence of the document and has made an averment that the same is lost. He accordingly has made out a case for leading secondary evidence in regard to the second will also which has been declined. It will be futile to mention that only permission to lead secondary evidence has been granted and it will always be open for the parties to argue about the value to be attached to this piece of evidence, which is taken on record as secondary evidence. The impugned order to an extent declining the prayer of the petitioner for leading secondary evidence of the will of the Parkash Kaur is set aside. The petitioner would be permitted to lead secondary evidence in regard to the said will also." 5. In view of the ratio of law which has been notice above the present petition is accepted and application for leading secondary evidence is allowed. The petitioner would be permitted to lead secondary evidence in regard to the said will also." 5. In view of the ratio of law which has been notice above the present petition is accepted and application for leading secondary evidence is allowed. The trial Court, after the parties lead their evidence, will formulate an opinion whether the document has been destroyed or lost. The Court will further decide whether permission be granted to the petitioner to prove the document by way of secondary evidence. Furthermore also, even if the secondary evidence is taken into consideration the parties will be at liberty to assail its evidentiary value. Petition allowed.