IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No. 1883 of 2008
Date of Decision: March 06, 2009
Asha Malhotra.
... Petitioner
Versus
Dr. Ravi Tej Singh Sehra.
... Respondent
CORAM: HON'BLE MR. JUSTICE S.D. ANAND.
Present : Ms. Ekta Thakur, Advocate,
for the petitioner.
Mr. Manish Joshi, Advocate,
for the respondent.
S.D. Anand, J.
The learned Trial Court, vide the impugned order,
allowed a plea filed by the respondent – defendant for being
allowed to adduce secondary evidence in respect of Will dated
10.10.1995.
` The grievance of the petitioner – plaintiff is that the
plea under challenge could not have been allowed in the absence
of proof that the alleged Will was indeed not available for
production in the Court.
C.R. No. 1883 of 2008 2
The learned Trial Court noticed in the impugned order
itself that a similar plea between the parties had earlier been
allowed by the Court in another case. It is on that premise that the
learned Trial Court made the following observations:-
“7. After hearing ld. counsel for the parties and have
gone through the record, I am of the considered view
that the application in hand deserves to be accepted.
The plaintiff in his evidence has placed on record copy
of judgment dated 18.10.06 Ex.PX passed in case
titled as Ravi Tej Singh Sehra Vs. General Public &
others in which plaintiff in this case was also party.
The contents of this judgment shows that a similar
application for proving Will in question by way of
secondary evidence was moved which was allowed by
that Court. When in another case between the parties,
the Will in question was liable to be proved by way of
secondary evidence there is no occasion for this Court
to decline the same relief which was allowed in
another suit between the same parties. No doubt, in
the reported case, it was observed that where the
applicant was not shown to be in possession of original
then admission of Photostat copy as secondary
evidence was declined. However, in the present case
a similar application was accepted in another case
between the same parties then it would be not proper
C.R. No. 1883 of 2008 3and just to decline the application in hand. In view of
the above discussion, the application stands allowed.”
In order to obtain the invalidation of the impugned
order, the learned counsel for the petitioner relies upon (2007-3)
The Punjab Law Reporter, 310 – Smt. J. Yashoda Vs. Smt. K.
Shobha Rani.
The judgment relied upon by the petitioner only
reiterates the established law that a party, before being allowed to
adduce secondary evidence, must prove the existence and
execution of the original document.
In the present case, the facts are entirely different.
A similar plea between the parties was concededly
allowed by the Court in another litigation and that order has
attained finality for want of challenge. In the view of things, the
judicial pronouncement aforementioned would not apply to the
facts and circumstances of the present case.
The petition shall stand dismissed.
March 06, 2009 ( S.D. Anand ) vkd Judge