PURNA CHAND Vs. PAWAN KUMAR @ MONU

JUDGEMENT

(1.) By this writ petition, the petitioner- defendant has challenged the order dated 20.10.2012 passed by the learned Additional District Judge No.1, Bikaner (for short 'the trial court' hereinafter), whereby the learned trial court has dismissed the application preferred by the petitioner-defendant under section 65 of the Indian Evidence Act, 1872 (for short 'the Evidence Act' hereinafter) in Civil Suit No.7/2008 (373/2007).

(2.) Brief facts of the case are that in a suit preferred by the respondent-plaintiff under Order 7 Rule 1 CPC for declaration and possession of disputed property, the petitioner-defendant had moved an application under section 65 of the Evidence Act and requested for permitting him to produce the alleged Will dated 17.08.2004, executed in his favour by his father late Shri Takan Das as secondary evidence. The said application was opposed by the respondent and the learned trial court, after hearing both the parties, has dismissed the said application by the order impugned dated 20.10.2012, against which the petitioner has preferred this writ petition.

(3.) The learned counsel for the petitioner Mr Manoj Bhandari has argued that the learned trial court has dismissed the said application solely on the ground that the petitioner has failed to make a mention about the alleged Will dated 17.08.2004 in his written statement. It is contended by the learned counsel for the petitioner that there is a specific mention about the Will dated 17.08.2004 in para No.15 of the written statement of the petitioner, however, the learned trial court has failed to take into account the said averments made in the written statements and has wrongly dismissed the application preferred by the petitioner for producing the said Will as secondary evidence. It is further contended by the learned counsel for the petitioner that if the photo copy of the Will dated 17.08.2004 is taken on record, the respondent will not be adversely affected and, therefore, the application preferred by the petitioner under section 65 of the Evidence Act before the trial court deserves to be allowed and the impugned order passed by the learned trial court is liable to be set aside.