RAJESH KUMAR BHATI Vs. ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) THIS writ petition is directed against order dated 14-12-2007 passed by the learned Additional District Judge (F. T.)No. 3, Jodhpur in Civil Suit No. 468/04, whereby an application preferred by the petitioner-defendant under Order XI, Rule 14 of Civil Procedure Code, 1908 read with section 65 of the Indian Evidence Act; 1872 (in short "the Act" hereinafter), stands rejected.

(2.) THE respondent-plaintiff preferred a suit for possession of the disputed, property inter alia against the petitioner-defendant on the strength of a Will dated 21-10-1980 executed by Smt. Kisturi Devi in his favour. The petitiorier-defendant filed the written statement denying the averments made in the plaint and also filed a counter claim seeking declaration to the effect that the said will dated 21-10-1980 is concocted, false and null and void. That apart, petitioner-defendant has taken the stand that the plaintiff's father late Shri Ummed Singh had executed his last Will on 25-7-1994, the copy whereof was supplied to him by the plaintiff in the month of November, 97.

(3.) THE petitioner-defendant preferred an application under Order XI, Rule 14, CPC read with Section 65 of the Act with the allegation that original Will dated 25-7-1994 is in possession of the plaintiff but he is not producing the same therefore the petitioner-defendant may be permitted to produce the photo stat copy of the Will as secondary evidence. The respondent-plaintiff filed a reply to the application and submitted that late shri Ummed Singh had never executed the will on 25-7-1994 and the photo stat copy of the said Will sought to be produced on record is forged and fabricated. It was stated that neither the Will dated 25-7-2004 is in possession of the respondent-plaintiff nor photo copy thereof was ever supplied by the plaintiff to the petitioner-defendant.