RAMAWTAR SHARMA Vs. ADDITIONAL CIVIL JUDGE (J.D.)

JUDGEMENT

(1.) The present writ petition arises out of the order dated 26/9/2013 passed by the Additional Civil Judge (Junior Division) No. 1, Jaipur District, Jaipur (hereinafter referred to as 'the Trial Court') in Civil Suit No.51/2013, whereby the Trial Court has allowed the application filed by the respondent-plaintiff to lead the secondary evidence under Section 65 of the Evidence Act and has dismissed the application of the petitioner-defendant to frame the additional issue under Order 14, Rule 5 of CPC.

(2.) At the outset, it is stated by the learned counsel for the petitioner that he does not press for the challenge as regards the dismissal of his application under Order 14, Rule 5 of CPC, however, he is aggrieved by that part of the impugned order, whereby the respondent-plaintiff has been permitted to lead the secondary evidence under Section 65 of the Evidence Act. According to him, the Trial Court has misinterpreted the earlier judgment passed by this Court in Civil Writ Petition No.4552 of 2012 and has allowed the said application of the respondent, though there was no compliance of the provisions contained in Section 63 read with Section 65 of the Evidence Act. The learned counsel Mr. Prahlad Sharma for the respondent-plaintiff has, however, submitted that the respondent-plaintiff has filed the affidavit stating the existence of the original family settlement deed. Of course he has conceded that the respondent has not complied with the provisions contained in Section 65 of the Evidence Act.

(3.) In the instant case, it appears that earlier the Trial Court had rejected the application of the respondent-plaintiff for taking on record the said copy of the family settlement by way of secondary evidence under Section 65 of the Evidence Act, which order having been challenged before this Court, this Court had dismissed the said petition by observing as under:-