JUDGMENT : SANDEEP SHARMA, J. 1. Being aggrieved and dissatisfied with the order dated 15.12.2014, passed by the learned Civil Judge (Junior Division), Court No.I, Una, District Una, Himachal Pradesh, whereby an application (CMA No. 387 of 2014) under S.65 of the Indian Evidence Act (hereinafter, ‘Act’) read with S.151 CPC, having been filed on behalf of the petitioner-plaintiff (hereinafter, ‘plaintiff’), seeking therein permission to lead secondary evidence, came to be dismissed, plaintiff has approached this court in the instant proceedings, praying therein to set aside the impugned order referred to herein above and permit him to lead secondary evidence to prove Will, Ext. PW-1/A. 2. Necessary facts, as emerge from the record, are that the plaintiff filed a suit for declaration to the effect that he is owner-in-possession of the estate of deceased Sant Ram son of late Gonda, to the extent of 1/3rd share of suit land (as described in the head note of the plaint), on the basis of registered Will dated 3.6.1996, executed by late Sant Ram. Respondents-defendants (hereinafter, ‘defendants’), while refuting the claim put forth by the plaintiff in the plaint, admitted the factum with regard to execution of Will dated 3.6.1996, qua 1/3rd share in favour of the plaintiff by deceased Sant Ram, however, defendants, claimed that subsequently, Will dated 3.6.1996, was cancelled /revoked by the deceased Sant Ram vide another Will dated 7.6.1996, whereby entire estate was bequeathed in favour of his wife, Ram Piari, and defendants. 3. During the pendency of the civil suit, plaintiff filed an application under Order 11 Rule 14 CPC, seeking therein direction to the defendants to produce the original Will dated 3.6.1996. Plaintiff averred in the application that the Will dated 3.6.1996, was lying in possession of the defendants, as such, they be directed to produce the same for proper adjudication of the case. However, defendants resisted the application and claimed that the Will dated 3.6.1996, never came in their possession. Learned Court below, vide order dated 11.4.2014, dismissed the application, which order never came to be assailed, as such, same attained finality. Subsequently, plaintiff filed yet another application under S.65 of the Act read with Section 151 CPC, seeking therein permission of the court to lead secondary evidence, to prove the Will dated 3.6.1996, which otherwise stood exhibited as Ext. Learned Court below, vide order dated 11.4.2014, dismissed the application, which order never came to be assailed, as such, same attained finality. Subsequently, plaintiff filed yet another application under S.65 of the Act read with Section 151 CPC, seeking therein permission of the court to lead secondary evidence, to prove the Will dated 3.6.1996, which otherwise stood exhibited as Ext. PW-1/A. However, the fact remains that such application came to be dismissed on the ground that the plaintiff before filing the application under S. 65, failed to serve defendants with the notice as required under S.66. In the aforesaid ground, plaintiff has approached this court, in the instant proceedings. 4. I have heard the learned counsel for the parties and gone through the record carefully. 5. Having heard the learned counsel representing the parties and perused the material available on record vis-à-vis reasoning assigned by the learned Court below, while passing impugned order, this court finds that the plaintiff before filing the application under S.65 of the Act, has not issued notice under S.66 to the defendants, intimating therein his intention to move an application under S.65 of the Act, seeking therein direction to lead secondary evidence to prove factum of existence of Will dated 3.6.1996. Having carefully perused order dated 11.4.2014 passed by the learned Court below, this court is persuaded to agree with the contention of Mr. Anup Rattan, learned counsel representing the plaintiff that since by way of filing application under Order 11 Rule 14 CPC, intention of the plaintiff to seek direction against the defendants to produce Will dated 3.6.1996, had already come to the notice of defendants, there was no requirement, if any, to serve defendants with notice, as contemplated under S.66 before moving application under S.65. 6. Leaving it aside, this court finds that bare perusal of plaint as well as written statement itself suggests that the factum with regard to execution of Will dated 3.6.1996, was very much in the knowledge of both the parties. Plaintiff, in the plaint, specifically claimed that the deceased Sant Ram bequeathed one third of his property in his favour by way of Will dated 3.6.1996, which fact never came to be disputed in the written statement having been filed by the defendants, rather, defendants acknowledged the factum with regard to execution of Will dated 3.6.1996, in their written statement. Plaintiff, in the plaint, specifically claimed that the deceased Sant Ram bequeathed one third of his property in his favour by way of Will dated 3.6.1996, which fact never came to be disputed in the written statement having been filed by the defendants, rather, defendants acknowledged the factum with regard to execution of Will dated 3.6.1996, in their written statement. Very object and purpose of issuance of notice under S. 66 of the Act is to make a party aware regarding the document, sought to be produced from his/her custody or to be led in secondary evidence. In the case at hand, if averments contained in the application filed under S.65 are read in their entirety, same clearly reveal that the plaintiff sought permission of the court to prove Will dated 3.6.1996, which otherwise stood exhibited as Ext. PW-1/A, by leading secondary evidence. As has been noticed herein above, factum with regard to existence of Will dated 3.6.1996, never came to be disputed, rather same was categorically admitted by the defendants in their written statement. 7. At this stage, provisions of S.66 of the Act may be usefully extracted herein below: “66. PW-1/A, by leading secondary evidence. As has been noticed herein above, factum with regard to existence of Will dated 3.6.1996, never came to be disputed, rather same was categorically admitted by the defendants in their written statement. 7. At this stage, provisions of S.66 of the Act may be usefully extracted herein below: “66. Rules as to notice to produce Secondary evidence of the contents of the documents referred to in section 65, clause (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, 46[or to his attorney or pleader,] such notice to produce it as is prescribed by law, and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case: Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:- (1) when the document to be proved is itself a notice ; (2) when, from the nature of the case, the adverse party must know that he will be required to produce it; (3) When it appears or is proved that the adversary has obtained possession of the original by fraud or force; (4) when the adverse party or his agent has the original in Court; (5) when the adverse party or his agent has admitted the loss of the document; (6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.” 8. Careful perusal of aforesaid provisions of law suggests that the very purpose of notice under S.66 is only to put other party to notice to produce the document, in whose possession or power, document is, so as to afford opportunity to the party by producing same to secure best evidence of its defence. 9. Careful perusal of aforesaid provisions of law suggests that the very purpose of notice under S.66 is only to put other party to notice to produce the document, in whose possession or power, document is, so as to afford opportunity to the party by producing same to secure best evidence of its defence. 9. In the case at hand, though careful perusal of the plaint itself suggests that the factum with regard to the Will in question was very much in the knowledge of the defendants, because, plaintiff in his plaint had categorically stated that by way of Will dated 3.6.1996, deceased Sant Ram bequeathed 1/3rd share of his property in his favour whereas, rest of the property came to be bequeathed in favour of his wife (Ram Piari) and defendants. Apart from above, subsequent to filing of plaint, application under Order 11 Rule 14 CPC, came to be filed whereby plaintiff sought direction to the defendants, to produce the Will, which, in my view, was sufficient notice to the defendants, to produce the Will in question. 10. Though, the application at hand came to be dismissed on the ground of non-issuance of notice under S. 66 but for the reason stated herein above, this court is of the view that non-issuance of notice under S.66 of the Act could not be a ground for the court below to dismiss the application. But, at this stage, Mr. Dheeraj K. Vashisht, Advocate argued that bare perusal of plaint, nowhere suggests that specific pleadings, if any, came to be made in the plaint that the Will dated 3.6.1996, was in possession of the defendants or same had been lost somewhere by the plaintiff, as such, plaintiff can not be permitted to lead secondary evidence in terms of provisions contained under S. 65, but, having carefully perused the provisions of S.66, this court is not in agreement with the aforesaid argument raised by Mr. Dheeraj K. Vashisht, Advocate, because, bare perusal of averments contained in the plaint and application suggests that there are specific pleadings in the plaint with regard to existence of Will dated 3.6.1996, which fact has been otherwise admitted by the defendants in their written statement. Dheeraj K. Vashisht, Advocate, because, bare perusal of averments contained in the plaint and application suggests that there are specific pleadings in the plaint with regard to existence of Will dated 3.6.1996, which fact has been otherwise admitted by the defendants in their written statement. Apart from above, plaintiff, with a view to prove existence of Will, also examined Deed Writer as PW-1, who had scribed the Will and exhibited the same as Ext.PW-1/A, as such, plaintiff has successfully established the factum with regard to existence of the Will in question and rightly moved an application seeking therein permission of the court to lead secondary evidence to prove the contents of Will in question. 11. It is well settled that mere exhibition of document is not sufficient to prove its contents, rather, party intending to prove the same is required to lead specific evidence to prove the contents of the same. In this regard, reliance is placed upon the judgment rendered by the Hon’ble Apex Court in Rakesh Mohindra versus Anita Beri and others, 2016(16) SCC 483, wherein it has been held as under:- “14. Section 65 of the Act deals with the circumstances under which secondary evidence relating to documents may be given to prove the existence, condition or contents of the documents. For better appreciation Section 65 of the Act is quoted herein below:- “65. Section 65 of the Act deals with the circumstances under which secondary evidence relating to documents may be given to prove the existence, condition or contents of the documents. For better appreciation Section 65 of the Act is quoted herein below:- “65. Cases in which secondary evidence relating to documents may be given: Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:- (a) When the original is shown or appears to be in the possession or power— of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it; (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (c) 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; (d) when the original is of such a nature as not to be easily movable; (e) when the original is public document within the meaning of section 74; (f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force 40[India] to be given in evidence ; (g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in court and the fact to be proved it the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.” 15. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.” 15. The preconditions for leading secondary evidence are that such original documents could not be produced by the party relied upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the non-production of primary evidence. Unless, it is established that the original documents is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot accepted. 16. The High Court in the impugned order noted the following : (Anita Beri vs. Rakesh Mohindra SCC Online HP 4258 para-9) “9. There is no averment about Ext. DW-2/B in the Written Statement. The Written Statement was filed on 19.2.2007. DW-2/B infact is only a photocopy. The plaintiffs are claiming the property on the basis of a registered will deed executed in her favour in the year 1984. It was necessary for the defendant to prove that in what manner the document dated 24.8.1982 was executed. The defendant while appearing as AW-1 has admitted in his cross-examination that except in his affidavit Ext. AW-1/A, he has not mentioned in any document that the letter of disclaimer was executed by Justice late Sh. Tek Chand in his presence. The statement of DW-2 does not prove that Ext. DW-2/A, ever existed. DW-2 Sh. Gurcharan Singh, has categorically admitted in his cross-examination that he has not brought the original of Ext. DW- 2/B. He has also admitted that on Ext. DW-2/B, the signatures of P.C. Danda were not legible. Volunteered that, those were not visible. The learned trial Court has completely misread the oral as well as the documentary evidence, while allowing the application under Section 65 of the Indian Evidence Act, 1872, more particularly, the statements of DW- 2 Gurcharan Singh and DW-3 Deepak Narang. The applicant has miserably failed to comply with the provisions of Section 65 of the Indian Evidence Act, 1872. The learned trial Court has completely misread the oral as well as the documentary evidence, while allowing the application under Section 65 of the Indian Evidence Act, 1872, more particularly, the statements of DW- 2 Gurcharan Singh and DW-3 Deepak Narang. The applicant has miserably failed to comply with the provisions of Section 65 of the Indian Evidence Act, 1872. The learned trial Court has erred by coming to the conclusion that the applicant has taken sufficient steps to produce document Ext. DW- 2/B.” 17. The High Court, following the ratio decided by this Court in the case of J. Yashoda vs. Smt. K. Shobha Rani, AIR 2007 SC 1721 and H. Siddiqui (dead) by lrs. vs. A. Ramalingam, AIR 2011 SC 1492 , came to the conclusion that the defendant failed to prove the existence and execution of the original documents and also failed to prove that he has ever handed over the original of the disclaimer letter dated 24.8.1982 to the authorities. Hence, the High Court is of the view that no case is made out for adducing the secondary evidence. 18. The witness DW-2, who is working as UDC in the office of DEO, Ambala produced the original GLR register. He has produced four sheets of paper including a photo copy of letter of disclaimer. He has stated that the original documents remained in the custody of DEO. In cross-examination, his deposition is reproduced hereinbelow:- “xxxxxxxx by Sh. M.S. Chandel, Advocate for the plaintiff No.2. I have not brought the complete file along with the record. I have only brought those documents which were summoned after taking up the documents from the file. As on today, as per the GLR, Ex.DW- 2/A, the name of Rakesh Mohindra is not there. His name was deleted vide order dated 29.8.2011. I have not brought the original of Ex.DW- 2/B. It is correct that Ex.DW-2/D does not bear the signatures of Sh. P.C. Dhanda. Volunteered.: These are not legible. Ex.DW-2/C is signed but the signatures are not leible. On the said document the signatures of the attesting officer are not legible because the document became wet. I cannot say whose signatures are there on these documents. On Ex.DW-2/E the signatures at the place deponent also appears to have become illegible because of water. Ex.DW-2/F also bears the faded signatures and only Tek Chand is legible on the last page. I cannot say whose signatures are there on these documents. On Ex.DW-2/E the signatures at the place deponent also appears to have become illegible because of water. Ex.DW-2/F also bears the faded signatures and only Tek Chand is legible on the last page. It is incorrect to suggest that the last page does not have the signatures of the attesting authority. Volunteered: These are faded, but not legible. The stamp on the last paper is also not legible. There is no stamp on the first and second page. In our account, there is no family settlement, but only acknowledgement of family settlement. I do not know how many brothers Rakesh Mohindra has. It is correct that the original of Ex.DW- 2/H does not bear the signatures of Sh. Abhay Kumar. I do not know whether Sh. Abhay Kumar Sud and Rakesh Mohindra are real brothers. The above mentioned documents were neither executed nor prepared in my presence. It is incorrect to suggest that the above mentioned documents are forged. It is incorrect to suggest that because of this reason I have not brought the complete file.” 19. In Ehtisham Ali v. Jamma Prasad 1921 SCC OnLine PC 65 a similar question came for consideration as to the admissibility of secondary evidence in case of loss of primary evidence. Lord Phillimore in the judgment observed:(SCC Online PC) “It is, no doubt, not very likely that such a deed would be lost, but in ordinary cases, if the witness in whose custody the deed should be, deposed to its loss, unless there is some motive suggested for his being untruthful, his evidence would be accepted as sufficient to let in secondary evidence of the deed.” 20. It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence. At the same time, the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. It is equally well settled that neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispense with its proof, which is otherwise required to be done in accordance with law.” 12. It is equally well settled that neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispense with its proof, which is otherwise required to be done in accordance with law.” 12. In view of the detailed discussion made herein above and law laid down by the Hon'ble Apex Court (supra), the present petition is allowed. Order dated 15.12.2014 passed by the learned Civil Judge (Junior Division), Court No. I, Una, District Una, Himachal Pradesh in Civil Suit No. 50-I-11 is set aside. Application filed by the plaintiff for leading secondary evidence under S.65 of the Act, is allowed, subject to costs of Rs.10,000/-, to be paid to the defendants, within four weeks from today. Pending applications, if any, are disposed of. Interim direction, if any, is vacated. Record, if received, be sent back forthwith.