JUDGMENT
A.P. Chowdhri, J.
1. This revision is directed against order dated March 11, 1991, of Additional Senior Subordinate Judge, Karnal, dismissing plaintiff’s application for leading secondary evidence. The aforesaid application was made in these circumstances.
2 One Smt. Antul was the owner of the property in question. The defendants are the daughters and son of said Antul. On the death of Antul, the plaintiff-petitioner Sinnu propounded a will dated October 12, 1983, for getting mutation of land entered on the basis thereof in his favour. The mutation was contested by the defendants. The petitioner produced the original unregistered will dated October 12, 1983, before Assistant Collector IInd Grade. The Will was exhibited as P-1. The mutation having been contested was transferred to Assistant Collector Ist Grade and after enquiry it was held by Assistant Collector Ist Grade that the Will was not genuine and consequently mutation was not sanctioned in favour of the petitioner. The petitioner thereafter instituted a regular Civil Suit. In the course of evidence, the plaintiff summoned record relating to mutation proceedings in which the original Will had been produced. Lakhi Ram, Office Kanungo, attended the Court and stated that the orginal record was not traceable and the above report was endorsed by the Tehsildar. Thereafter an application was made by the plaintiff for permission to lead secondary evidence, which is in the form of a photostat copy alleged to be of the original will. The application was resisted and by the impugned order the application was dismissed with the finding that the applicant had failed to establish that the original had been either destroyed or lost. Hence, this revision.
3. The contention of the learned counsel for the petitioner is that whatever evidence could possibly he led to show the loss of the original document had been produced and it was not required by any law that the loss of the original should be proved in absolute terms. It was also argued that if the plaintiff is not allowed to lead secondary evidence, he would suffer for no fault of his. In fact, he had produced, the original will before Assistant Collector in the course of the mutation proceedings and he was not responsible for the loss of the original document.
4. The contention of the learned counsel for the respondents, on the other hand, is that the statement of the Office Kanungo does not establish destruction of the original. It cannot also be said that the document had been lost in the sense of being irretrievably lost because it is quite possible that it may be traced out later. Learned counsel vehemently argued that the Will had not been found to be genuine by the Assistant Collector, permitting the plaintiff to lead evidence on the basis of a photostat copy would deprive the defendant-respondents of an effective opportunity to show that the Will was not genuine. In other words, no evidentiary value could possibly be given to the photostat copy sought to be produced as secondary evidence.
5. I have given my careful consideration to the respective submissions of the learned counsel.
6. The relevant provision relating to secondary evidence of documents is to be found in section 65(c) of the Evidence Act, which reads as follows :-
65. xx:-Secondary evidence may be given of the existence, condition or contents of a document in the following cases :
(a) xxx xxx xxx xxx (b) xxx xxx xxx xxx (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time ; (d) xxx xxx xxx xxx etc. xxx xxx xxx xxx
It will be seen that the above provision consists of three parts, namely (i) where the original has been destroyed; (ii) where the original is lost and (iii) where the party offering such evidence cannot produce it in a reasonable time for a reason not arising out of his own default or neglect. It may further be noted that the three parts are in the alternative as indicated by the use of the word “or” in between “destroyed” or “lost” and lost and the third eventuality. The above analysis shows that it is not always a condition preedent to prove that the original document had been destroyed. There is no need to go into the scope of the word “lost” in the sense that the loss must be in absolute terms. The third part of the above provision makes it abundantly clear that if a person is not able to produce the original within a reasonable time for a reason other than the one arising from his own default or neglect, he may be permitted to lead secondary evidence. In the faets of the present case, there is a categorical statement of the Office Kanungo, which is affirmed by the Tehsildar, that the original record is not traceable. That being so, the plaintiff was unable to produce the original Will in a reasonable time and the reason for his inability did not arise out of his own default or neglect. It may also be made clear that the Court in granting permission to lead secondary evidence does not pronounce on the evidentiary value to be attached to the secondary evidence. Viewed from this angle, it will be open to the defendant-respondents to bring on record all possible facts and circumstances, which would eventually help the Court to determine the evidentiary value to the given to he photostat copy proposed to be produced in the secondary evidence. It may also be made clear that section 63 of the Evidence Act defines what is secondary evidence and it is open to the parties to raise an objection that the evidence proposed to be given as secondary evidence does not in fact fall within the purview of any of the clauses of section 63. That question is, therefore, left open to be decided according to law at the appropriate stage when it is raised. For the time being, I am concerned only with deciding the question whether the petitioner has made out a case under Section 65(c) of the Act for permission to lead secondary evidence. For the reasons discussed above, I am of the view that a clear case for doing so had been made out and the Court in dismissing the application acted with material irregularity in the exercise of its jurisdiction.
7. The revision petition is accordingly allowed and the order in question is set aside The trial Court is directed to proceed further in the matter according to law and in the light of the observations made hereinabove.
8. The parties through counsel are directed to appear in the trial Court on January 30, 1992.