FAGULAL Vs. RAGUVEER PRADHAN

JUDGEMENT

(1.) WP227 No. 527 of 2024 : This writ petition has been filed assailing the order dtd. 2/4/2024 whereby the application preferred by the petitioners/defendants under Sec. 65 of the Evidence Act to lead secondary evidence by taking photocopy of the document on record executed on 26/10/2011 by the mother of the petitioners and respondent No.1 was rejected.

(2.) Facts of the case are that the petitioners and respondent No.1 are brother and sister in relation. It is not disputed that the subject property was in the name of their mother namely, Kishori, and the plaintiff has filed a civil suit claiming title on the basis of registered Will dtd. 5/12/2009, making an averment, inter alia, that the Will has been executed by his mother and the present petitioners have disputed that the said Will is forged one. During the pendency of the suit, when the case was listed for the plaintiff's evidence and chief-examination, only an affidavit has been filed in the form of Chief Examination and crossexamination had not begun. The petitioners have moved the present application stating that their mother Kishori has also executed a document on 26/10/2011, wherein she has categorically stated that her younger son namely, Raghuveer Pradhan shall bear the expenditure of her treatment and after her death, the claim preferred by her younger son shall be allowed in his favour and the plaintiff/respondent No.1 and sister i.e. petitioner No.2 have signed the said document, whereas the said document has not been signed by petitioner No.1. It has been stated that the original document is in the custody of the plaintiff/respondent No.1. Even after notice under Order 11 Rule 12 of the CPC, the same has not been produced, whereas the second copy was in possession of sister Subhashini. The said document has been filed to lead secondary evidence, which was disallowed.

(3.) Learned counsel for the petitioners would submit that as the foundation fact has already been established by the petitioners that the original document was in the custody of the plaintiff and he has not produced the same even after notice, so photocopy of the said document should have been considered as secondary evidence. He would further submit that even after admission of the document in evidence, the same does not discharge the burden of the petitioners to prove the same, which is otherwise required to be done in accordance with law. Learned counsel for the petitioners would place reliance on the judgment of the Hon'ble Supreme Court in the matter of Rakesh Mohindra Vs. Anita Beri and Others {Civil Appeal No.13361/2015, decided on 6/11/2015} and would refer para-22, which reads thus:-