SHAMINDER KUMAR CHAOUDHARY Vs. SUKHDEV CHAND AND OTHERS

JUDGEMENT

(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 Sec. 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.