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2013 DIGILAW 1031 (RAJ)

Purna Chand v. Pawan Kumar @ Monu

2013-05-17

VIJAY BISHNOI

body2013
JUDGMENT 1. - By this writ petition, the petitioner-defendant has challenged the order dated 20.10.2012 passed by the learned Additional District Judge No.1, Bikaner (for short 'the trial court' hereinafter), whereby the learned trial court has dismissed the application preferred by the petitioner-defendant under section 65 of the Indian Evidence Act, 1872 (for short 'the Evidence Act' hereinafter) in Civil Suit No.7/2008 (373/2007). 2. Brief facts of the case are that in a suit preferred by the respondent-plaintiff under Order 7 Rule 1 CPC for declaration and possession of disputed property, the petitioner-defendant had moved an application under section 65 of the Evidence Act and requested for permitting him to produce the alleged Will dated 17.08.2004, executed in his favour by his father late Shri Takan Das as secondary evidence. The said application was opposed by the respondent and the learned trial court, after hearing both the parties, has dismissed the said application by the order impugned dated 20.10.2012, against which the petitioner has preferred this writ petition. 3. The learned counsel for the petitioner Mr Manoj Bhandari has argued that the learned trial court has dismissed the said application solely on the ground that the petitioner has failed to make a mention about the alleged Will dated 17.08.2004 in his written statement. It is contended by the learned counsel for the petitioner that there is a specific mention about the Will dated 17.08.2004 in para No.15 of the written statement of the petitioner, however, the learned trial court has failed to take into account the said averments made in the written statements and has wrongly dismissed the application preferred by the petitioner for producing the said Will as secondary evidence. It is further contended by the learned counsel for the petitioner that if the photo copy of the Will dated 17.08.2004 is taken on record, the respondent will not be adversely affected and, therefore, the application preferred by the petitioner under section 65 of the Evidence Act before the trial court deserves to be allowed and the impugned order passed by the learned trial court is liable to be set aside. 4. 4. On the other hand, reply to the writ petition has been filed on behalf of the respondent and it is argued by counsel Mr Vikas Balia that the respondent had moved an application under Order 11 Rule 12,14 and 15 of the CPC on 05.02.2010 before the learned trial court and prayed that the petitioner may be directed to produce the original Will dated 17.08.2004 and on the said application, the learned trial court had passed the order dated 23.04.2010 and directed the petitioner defendant to produce the original Will before the Court. It is further contended by the learned counsel for the respondent that after passing of the order dated 23.04.2010, on two occasions, the petitioner sought time to produce the original Will dated 17.08.2004 but the same had not been produced, however, an application under section 65 of the Evidence Act was moved for producing a photo copy of the alleged Will dated 17.08.2004 as secondary evidence and this action of the petitioner-defendant was nothing but to avoid the production of the original of alleged Will dated 17.8.2004. The existence of which is very much doubtful. The learned counsel for the respondent has, therefore, prayed for dismissal of this writ petition. 5. This Court has considered the submissions made on behalf of the rival parties, perused the impugned order and gone through the material placed on record. 6. The learned trial court in its order dated 20.10.2012, has observed that the petitioner had not produced the original of alleged Will dated 17.08.2004 before the learned trial court along with the written statement, however, in response to the application of the respondent moved under Order 11 Rule 14 CPC dated 05.2.2010, the petitioner had admitted that the original Will is in his power and possession and, therefore, in view of the admission of the petitioner, the trial court had passed the order dated 23.4.2010 and directed the petitioner to produce the original of the alleged Will dated 17.08.2004 before the trial court and for this purpose, the petitioner took time on two occasions i.e. 14.05.2010 and 24.05.2010, but did not produce the original of alleged Will dated 17.08.2004 and instead, preferred an application for producing a photo copy of the Will dated 17.08.2004. The learned trial court has also observed that on 09.07.2010, the applicant had filed an application before the trial court, while stating that the original Will has been missed somewhere and would be produced before the court as and when traced out, but later on he filed an FIR on 29.07.2010 stating that the original Will is missing since 02.04.2010. 7. After taking into consideration all the facts and circumstances of the case, the learned trial court has rejected the application preferred by the petitioner defendant under section 65 of the Evidence Act vide order dated 20.10.2012, while observing that even the existence of the alleged Will dated 17.08.2004 is doubtful. 8. In view of the fact that the petitioner defendant had not submitted the original Will along with the written statement and not disclosed before the trial court about missing of the original Will at the time of passing of the order dated 23.04.2010 and in view of the fact that the petitioner took time on two occasions i.e. 14.05.2010 and 24.05.2010 for producing the original of the alleged Will, no fault can be found with the order of the learned trial court dated 20.12.2010, whereby the learned trial court has dismissed the application preferred by the petitioner-defendant under section 65 of the Evidence Act. Therefore, no interference is called for with the order impugned.Accordingly, the writ petition fails and is hereby dismissed.Petition Dismissed. *******