Madhya Pradesh High Court
Satyaprakash Singh vs Avnish on 16 December, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 16th OF DECEMBER, 2022
MISCELLANEOUS PETITION NO.6162 OF 2022
BETWEEN:-
SATYAPRAKASH SINGH S/O SHRI
DALVEER SINGH YADAV, AGED ABOUT 45
YEARS, OCCUPATION AGRICULTURIST,
R/O RAMA, TEHSIL ATER, DISTRICT
BHIND (MADHYA PRADESH)
........PETITIONER
(BY SHRI G.S. SHARMA - ADVOCATE)
AND
1. AVNISH S/O SHRI RAMTIRTH, BY CASTE
YADAV, AGED ABOUT 25 YEARS, R/O
ISHAKPUR, POST MADANPUR, TEHSIL
SIRSAGAJ, DISTRICT FIROZABAD
(UTTAR PRADESH)
2. STATE OF MADHYA PRADESH THROUGH
ITS COLLECTOR BHIND, DISTRICT
BHIND (MADHYA PRADESH)
........RESPONDENTS
(BY SHRI DEVENDRA CHAUBEY. - GOVERNMENT ADVOCATE)
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This petition coming on for admission this day, the Court passed
the following:
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ORDER
This petition under Article 227 of the Constitution of India has been 2 filed against the order dated 11.10.2022 passed by Second Additional Judge to the Court of First Civil Judge, Junior Division, District Bhind in Civil Suit No.267A/2019 by which the application filed by the petitioner under Section 65 of Evidence Act to lead secondary evidence has been rejected.
2. It is the case of the petitioner that the petitioner has missed the original copy of Will and accordingly sought permission from the Court to lead secondary evidence as the photocopy of the will is already available on record.
3. Whereas it is the case of the petitioner defendant No.1 that the petitioner has prepared a forged will after the death of the testator and opposed the prayer for permission to lead secondary evidence.
4. The petitioner has also filed an application under Order 16 Rule 1 of CPC on the ground that said will was notarized by Shri Gurunarayan Sharma, Notary and it was typed by a document writer Rajendra Kumar Soni and, therefore, both the witnesses are material witnesses and they are not ready to appear before the Trial Court at the request of the plaintiff and thus a prayer was made that both the witnesses may be summoned along with the register of the Notary.
5. The said application was also opposed by the defendant No.1 by submitting that the will relied upon by the petitioner is a forged document. No certificate has been issued by Rajendra Kumar Soni and Notary Gurunarayan Sharma to the effect that they are in possession of any document or register.
6. By the impugned order, the application filed under Order 16 Rule 1 of CPC and Order 65 of Evidence Act have been rejected.
7. Challenging the order passed by the Court below, it is submitted by the counsel for the petitioner that since the petitioner has lost the original 3 copy of will, therefore, he had prayed for examination of the Notary Shri Gurunarayan Sharma because the Notary had kept a copy of the Will with him. It is further submitted that the petitioner made a prima facie case to show that the original will was misplaced.
8. Heard the learned counsel for the petitioner.
9. Except by saying that the petitioner has misplaced the original Will, nothing else has been placed on record. During course of arguments, it was submitted by the counsel for the petitioner that since the said Will was filed before various revenue Courts in various proceedings, therefore, it has got misplaced. The said explanation given by the petitioner cannot be accepted because neither the petitioner has given the details of the revenue proceedings nor has produced any document to show that the original Will was ever produced by the petitioner in those revenue proceedings. Furthermore, the petitioner has tried to project that since Notary Gurunarayan Sharma is in possession of the another copy of will as he had notarized the said document, therefore, he should be summoned. The counsel for the petitioner has not filed any document to show that the Notary Gurunarayan Sharma is in possession of any additional copy of Will. Even an affidavit of Gurunarayan Sharma has not been filed to explain as to whether the Notary Gurunarayan Sharma is in possession of an extra copy of the Will or to explain any provision of law which authorizes the Notary to keep an additional copy of the Will in his possession. Even the copy of the application filed under Order 16 Rule 1 of CPC has not been filed.
10. The Court below has held that neither Gurunarayan Sharma nor Rajendra Kumar Soni can be said to be attesting witnesses.
11. Since the petitioner has miserably failed to prima facie establish that the original Will has been misplaced and even assuming that Gurunarayan 4 Sharma, Notary is in possession of some Will, no provision of law has been pointed out which attach any legal sanctity to such document, this Court is of the considered opinion that the Trial Court did not commit any mistake by rejecting the application filed under Section 65 of Evidence Act.
12. Accordingly, it is held that no jurisdictional error could be pointed out by the counsel for the petitioner.
13. Ex consequenti, order dated 11.10.2022 so far as it relates to dismissal of application under Section 65 of Evidence Act is hereby affirmed.
14. The petition fails and is hereby dismissed.
(G.S. AHLUWALIA) JUDGE (alok) ALOK KUMAR 2022.12.19 09:55:41 +05'30'