BIHARI LAL Vs. RAM PIARI

JUDGEMENT

(1.) The revision petition is filed against the order of the learned Additional Civil Judge (Senior Division) Karnal dated 20.1.1998 dismissing the application by the plaintiff-petitioner to lead secondary evidence in regard to the Will dated 13.8.1991 said to have been lost.

(2.) The plaintiff filed the suit for declaration and for permanent injunction. According to the plaintiff, his brother Khem Chand executed a Will on 13.8.1991. He further alleged that on 20.10.1995 he went to the District Consumer Forum, Karnal in a rickshaw and after reaching the Court premises, he found that the Will was missing from the pocket and he made a search of the Will, but he could not find out. He, therefore, lodged a complaint with the Police on 28.10.1995. It is also clear from the averments that a photostat copy of the Will has already been filed in the suit. The plaintiff, therefore, prayed for allowing him to lead secondary evidence. In order to prove the loss of the Will, the plaintiff examined himself as AW-1 and also one Shri Singh as AW-2 and Maha Singh as AW-3, who is Accountant in the District Consumer Forum. There is ample evidence on record to show that the case was pending in the District Consumer Forum on 20.10.1995 and the plaintiff-petitioner attended the same. It is also clear that in that case, the plaintiff was to produce the Will. According to the plaintiff, he lost the Will when he was going in a Rickshaw to the District Consumer Forum at Karnal. After making a search he also made a complaint to the Police. Thus, I am of the view that the loss of the Will has been amply proved by the plaintiff. When a photostat copy of the Will was filed with the original the same is admissible in evidence under illustration (b) of Section 63 of the Evidence Act. I am of the opinion that the learned Civil Judge went wrong in holding that the photostat copy which has been filed with the original is not admissible in evidence. It is on record that a photostat copy has been filed and it is certified to be true copy by the Advocate. What evidentary value can be given is a matter to be decided in the suit itself. In this connection, it is useful to refer to the decision of this Court in Sinnu v. Smt. Pali and Ors., (1992-1)102 P.L.R. 378, wherein it has been held that it may also be made clear that the Court in granting permission to lead secondary evidence does not pronounce on the evidentary value to be attended to the secondary evidence. Viewed from this angles it will be open to the parties to bring on record all possible facts and circumstances which would eventually help the Court to determine the evidentary value to be given to the photostat copy proposed to be produced in the secondary evidence. It may also be made clear that Section 63 of the Evidence Act defines what is secondary evidence and it is open to the parties to raise an objection that the evidence proposed to be given does not in fact fall within the purview of Section 63. This question is left open to be decided according to law at the appropriate stage when it is raised. For the time being, I am concerned only with deciding the question whether the petitioner has made out a case under Section 65(c) of the Act for permission to lead secondary evidence.

(3.) The present case squarely falls within the parameters laid down in the above decision. In Mukhtiar Singh v. Bant Singh and Anr., (1991-1)99 P.L.R. 15, this Court also held that a photostat copy of the original Will which has been placed on record may be permitted as secondary evidence to be led in. The same view was taken in Smt. Raj Kumari v. Shri Lal Chand, (1994-1)106 P.L.R. 190. The decision in Roman Catholic Mission v. State of Madras, A.I.R. 1966 S.C. 1457 has no application at this stage. Whether the original was produced at any time before any other person is a matter to be decided on evidence. In that case the Supreme Court was dealing with the matter after conclusion of the entire evidence and not at the stage when the secondary evidence is sought to be adduced during the pendency of the suit. As already stated, the value which can be given to the secondary evidence is to be decided at the time of arriving at final decision. The decision in Sital Das v. Sant Ram and Ors., A.I.R. 1954 S.C. 606 also cannot be pressed into service since on the facts of this case, the foundation was laid on the secondary evidence as it is proved that the original was lost when the petitioner was going in a rickshaw to attend the District Consumer Forum.