JAGDISH PRASAD Vs. OM PRAKASH & ORS

JUDGEMENT

(1.) This writ petition under Article 227 of the Constitution of India has been filed by the petitioner-defendant No. 1 against order dated 21.01.2014 passed by the trial court, whereby, the application filed by the petitioner-defendant No. 1 under Section 151 CPC and Section 44 of the Indian Evidence Act, 1872 ('Evidence Act') has been dismissed. The petitioner filed an application on 27.05.2013 seeking recall of the order dated 10.03.1995 passed on an application filed by the plaintiffs under Section 65 of the Evidence Act, whereby, they were permitted to lead secondary evidence qua Will dated 18.04.1969; it was, inter alia, indicated in the application that High Court in S.B. Civil Writ Petition No. 4595/2007 between the same parties by order dated 07.01.2008 has rejected secondary evidence qua the said Will and so called original Will has been produced by the plaintiffs in suit Ram Vilas v. Aidan; the plaintiffs based on false averments and despite the Will being in their possession, claiming the same to have been destroyed, had fraudulently obtained permission to lead secondary evidence by order dated 10.03.1995, whereas, it is settled law that in presence of original document, permission for leading secondary evidence cannot be granted; the High Court between the same parties in another suit has rejected permission to lead secondary evidence and for same document two different orders would be unjustified; the plaintiffs had suppressed the original document and as per order of the High Court, secondary evidence cannot be led, which order is binding on the trial court; the order has been obtained fraudulently and is nullity in law and, therefore, the order dated 10.03.1995 be recalled.

(2.) The application was opposed by the plaintiffs and the trial court after hearing the parties, came to the conclusion that there was no provision under the Code of Civil Procedure to recall the order passed earlier; the suit was pending since 1978 and was at the stage of final arguments; the application has been filed by the defendant to delay the suit and consequently rejected the same.

(3.) It is submitted by learned counsel for the petitioner that the suit was filed on 04.07.1978 by the plaintiffs being C.O. No. 36/1980 (Om Prakash & Anr. v. LRs of Aidan & Ors.) claiming succession on the basis of the Will executed in their favour by Kishnoji on April 18, 1969; in the suit it was indicated that original Will along with copy was produced; in the list of documents, it was indicated that photo copy of the Will was being filed.