KAMLESH RANI Vs. SUKHDEV NAGPAL

JUDGEMENT

(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 tiled 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 , 2007 148 PunLR 164, 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. 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.