KANHAIYA LAL GUPTA Vs. ASHOK KUMAR

JUDGEMENT

(1.) THIS petition filed under Article 227 of the Constitution challenges the order dated 27.01.2010 passed by Fourth Additional District Judge in Civil Suit No. 5A/2010, whereby the application preferred by the respondent/plaintiff under sections 65 and 66 of Indian Evidence Act is allowed.

(2.) THE certified will which is filed in the case was certified by the Notary in the year 1975 and it is neither doctored nor frivolous document. It is prayed that since the will was certified by the Notary, it may be taken as a secondary evidence. The petitioners filed reply and stated that the will dated 21.3.1972 is forged and frivolous document. The said will was neither executed nor produced in any case. The plaintiff has not shown the description of the case and case number etc. If the will was already produced in some matter, how Notary can certify it in the year 1975. It is further stated that on the face of the document (will) filed by the plaintiff, it is clear that it is a manufactured/doctored document prepared by the plaintiff himself. It is further stated in the reply that in reply to defendant/ petitioners' application under Order 11 Rule 12 CPC, which was decided on 4.8.208, the plaintiff filed his affidavit on 15.9.2008 and informed the Court that the original documents are in his possession. After having taken the said stand on affidavit, the plaintiff is estopped and cannot be permitted to take a somersault from his earlier stand. In nutshell, it is stated that the plaintiff's contention is not trustworthy and the said will does not fall within the ambit of 'secondary evidence'. The court below allowed the said application by impugned order which is called in question in the present matter.

(3.) PER Contra, Shri R.K.Soni, learned counsel for the other side, submits that there is no legal error which warrants interference of this Court under Article 227 of the Constitution.