Himachal Pradesh High Court
Tara Rani vs Of on 30 March, 2026
( 2026:HHC:9397 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No. 456 of 2025
Reserved on 12.03.2026
.
Date of Decision: 30.03.2026
Tara Rani ...Petitioner.
Versus
of
Bishani Devi (deceased)
through LRs & others ...Respondents.
Coram rt
Hon'ble Mr. Justice Romesh Verma, Judge.
Whether approved for reporting?1 Yes
For the petitioner: Mr. Piyush Dhanotia, Advocate.
For the respondents:Mr. N.K.Thakur, Senior Advocate with
Mr. Divya Raj Singh, Advocate.
__________________________________________________
Romesh Verma, Judge (oral)
The present petition arises out of the impugned order dated 11.06.2025, passed by learned Senior Civil Judge, Amb, District Una, H.P. in CMA No. 432 of 2025, titled Tara Rani vs. Bishani Devi & others, whereby application filed under Section 65 of Indian Evidence Act, 1872 for granting permission to prove the unregistered /oral will dated 12.09.1999 by way of leading the secondary evidence has been allowed.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 31/03/2026 20:31:38 :::CIS2 ( 2026:HHC:9397 )
2. The brief facts of the case are that the present petitioner filed a suit for declaration to the effect that the .
plaintiff is joint owner in possession with defendant and the proforma defendants qua the share to the extent of 1/6th share in the estate of deceased Rikhi Ram, S/O Babu Ram over the suit land. It was averred that the parties are class-I heirs of of deceased Rikhi Ram, who died on 16.09.1999. After the death of deceased Rikhi Ram, the plaintiff is owner in possession rt alongwith defendant and proforma defendants in equal shares.
3. That the deceased Rikhi Ram had no intention to execute any Will in favour of defendant alone. In the month of October, 2012 when the plaintiff came to her parental house, then defendant No.1 started proclaiming that she is the sole owner of the estate of deceased Rikhi Ram on the basis of some oral Will and she had also got sanctioned the mutation in respect of the suit land on the basis of the said Will. The plaintiff thereafter became suspicious and inquired the matter from Halqa Patwari and collected the revenue record and was surprised to know that defendant No.1 in connivance with some mischievous persons, got prepared oral will of deceased Rikhi Ram in her favour and got sanctioned mutation No. 424 of Village Shiv ::: Downloaded on - 31/03/2026 20:31:38 :::CIS 3 ( 2026:HHC:9397 ) Bari, mutation No. 219 of Village Chatehar, mutation No. 282 of Mohal Ram Nagar Gagret respectively.
.
4. It was averred that the deceased Rikhi Ram was not having fit state of mind to understand the things and he was not in position to understand the contents of any documents. The defendant No.1 in connivance with mischievous persons got of prepared the oral will just to grab the estate of deceased Rikhi Ram, whereas the deceased Rikhi Ram never disclosed any rt intention to execute the alleged Will during his life time in favour of the defendant No.1 alone. Therefore, suit was filed for declaration to the effect that plaintiff is owner in possession qua her 1/6th share in the property of deceased Rikhi Ram, S/O Babu Ram in the ancestral property i.e. land measuring 1-64-26 Hects + 1129-00 berg decimeter over the suit land. Plaintiff has equal right in the property of deceased Rikhi Ram being the class one heir. It is averred that the unregistered will dated 12.09.1999 is the result of fraud, which is not binding upon the rights of the plaintiff.
5. The defendants contested the suit by filing written statement, wherein they took preliminary objections with regard to maintainability, cause of action, suppression of facts and locus standi etc. On merits, it was stated that the ::: Downloaded on - 31/03/2026 20:31:38 :::CIS 4 ( 2026:HHC:9397 ) plaintiff and proforma defendants have no concern with the suit land. It was averred that deceased Rikhi Ram had executed an .
unregistered/oral Will during his lifetime in favour of defendant No.1, out of his free will, in sound disposing state of mind in the presence of witnesses and respectable persons of the locality on account of services rendered by defendant No.1 in his old age.
of The plaintiff was also called by the Revenue Officer, Amb and asked the plaintiff regarding the genuineness of the Will and she rt accepted the same as a genuine document in the presence of scribe, witnesses and other persons of the locality. The defendants prayed for dismissal of the suit.
6. Plaintiff filed replication to the written statement filed by the defendants and reiterated the averments as made in the plaint.
7. It reveals from the case file that suit was filed on 10.02.2014 and the written statement was filed on 24.5.2014.
During the pendency of the suit on 01.04.2016, the plaintiff filed an application under Order 11 Rule 14 of CPC for production of original Will, if any, alleged to have been executed in favour of defendant No.1 i.e. Bishani Devi, W/O Rikhi Ram. In the said application, it was prayed by the plaintiff that the defendants may be directed to produce original Will, if any, before the Court so ::: Downloaded on - 31/03/2026 20:31:38 :::CIS 5 ( 2026:HHC:9397 ) that the plaintiff can give her evidence as per the said alleged Will which is in possession of the defendants.
.
8. Reply to the said application was filed by defendant No.1 in which it was submitted that the defendant No.1 is a simpleton lady and she produced the original Will before the Revenue Authority, at the time of sanctioning the mutation, of thereafter, defendant No.1 after filing of the present application inquired the matter from the Revenue Authority but the same rt could not be traced out despite various efforts made by the defendant No.1 and also by the Revenue Authority. Defendant No.1 is unable to produce original copy of Will before this Court. It was submitted that when the original Will shall be traced out, the same will be produced before this Court.
9. Finally, on 09.01.2018, the said application was disposed off by holding that respondent/ defendant has expressed her inability to produce the original Will in her reply.
Under Order 11 of CPC no penalizing order can be passed against the defendant/respondent for non production as is possible in the case of non-compliance with order for discovery under Order 11 Rule 21 CPC. However, under Section 164 of the Indian Evidence Act when a party refuses to produce a document which he had notice to produce, he cannot afterwards ::: Downloaded on - 31/03/2026 20:31:38 :::CIS 6 ( 2026:HHC:9397 ) use the document as evidence without the consent of the other party or the order of the Court.
.
10. Thereafter, the present defendant/respondent filed an application under Section 65 of Indian Evidence Act for granting permission to prove the unregistered/oral Will dated 12.09.1999 by leading the secondary evidence. The application of was filed in the year, 2024. It was averred in the application that during the pendency of the suit, the plaintiff had filed an rt application under Order 11 Rule 14 CPC for production of the original Will. In the reply, defendant No.1 had taken a stand that she produced the Will before Revenue Authorities at the time of sanctioning of the mutation and after the filing of the said application the defendant No.1 inquired about the matter and tried to trace out the copy of the Will before Revenue Authorities, but, the Will could not be traced out, hence, the defendant No.1 was unable to produce the original copy of the Will before the Court. It is stated in the reply to the application that number of applications were filed by the defendant No.1 before the Revenue Agency to return the Will and even one application under the RTI Act was also moved to inquire about the whereabouts of the Will, but unfortunately even after hard efforts of defendant No.1, the Original Will could not be traced out, but photocopy of the original Will which is prepared by the ::: Downloaded on - 31/03/2026 20:31:38 :::CIS 7 ( 2026:HHC:9397 ) mechanical process from the original is already on record. It was further averred that defendant No.1 being innocent and .
simpleton lady having no knowledge of law had produced the original Will before revenue agency at the time of attestation and sanction of the mutation, but the same was misplaced, hence the original Will could not be traced out and produced before the of Court even by applying due diligence and utmost care.
Therefore, it was prayed that she may be allowed to prove the rt photocopy of original Will dated 12.09.1999 by leading the secondary evidence of the original Will as the photocopy of original Will is already on record.
11. The petitioner/plaintiff filed reply to the said application and all the averments as made in the application were refuted in toto. It was averred in the reply that it is wrong to say that defendant No.1 had produced the Will before the Court alongwith the written statement. It was specifically submitted by the petitioner/plaintiff in the plaint that the respondent/defendant has placed the forged and fabricated document in connivance with each other and that is why they have intentionally not produced the copy of the original Will before the Court. There is no complaint/ Rapat or FIR having been filed by defendant No.1 before the Competent Authority on account of misplacement of the original copy of the Will.
::: Downloaded on - 31/03/2026 20:31:38 :::CIS8 ( 2026:HHC:9397 ) Therefore, it was prayed that the application filed under Section 65 of the Indian Evidence Act is neither maintainable nor it has .
merit. Therefore, same deserves to be dismissed.
12. The learned trial Court vide its order dated 11.06.2025 allowed the application filed by defendant No.1 and the prayer of the defendant/ respondent for seeking permission of to lead the secondary evidence to prove the unregistered Will dated 12.09.1999 has been allowed.
13. rt Feeling dissatisfied, the plaintiff/petitioner has approached this Court.
14. I have heard Sh. Piyush Dhanotia, Advocate for the petitioner and Sh. N.K.Thakur, Senior Advocate assisted by Sh.
Karan Veer Singh Thakur, Advocate for the respondents.
15. It is contended by Mr. Piyush Dhanotia, Advocate that the impugned order is not sustainable in the eyes of law as the learned Trial Court has erred by allowing the application under Section 65 of the Indian Evidence Act, whereby no case is made out to allow the said application, especially, in view of the fact that the parameters as laid down under the Act have neither been made out nor any case has been carved out to allow the application for secondary evidence. He has submitted that the learned trial Court has not assigned cogent and plausible reasons to allow the application and in a routine manner, the ::: Downloaded on - 31/03/2026 20:31:38 :::CIS 9 ( 2026:HHC:9397 ) application has been allowed in order to prejudice the rights of the parties.
.
16. Mr. N.K. Thakur, learned Senior Counsel, duly assisted by Mr. Karan Veer Singh Thakur, Advocate has supported the impugned order and submitted that the order, as passed by the learned trial Court, is legal, valid and sustainable of and no interference of any kind is required to the same. He further submitted that alongwith the written statement photocopy rt of the Will has already been appended . Therefore, there is no concealment of any kind on the part of the respondents/defendants and the learned trial Court has rightly allowed the application to lead secondary evidence and to prove the unregistered Will.
17. In the present case, the precise controversy to be determined by this Court is as to whether an application filed by the defendants/ respondents to prove the unregistered Will by way of secondary evidence is permissible or not.
18. The provisions of Section 65 of the Indian Evidence Act reads as follows:
"65. Secondary evidence may be given of the existence, condition, or contents of a document in the following cases--
(a) When the original is shown or appears to be in the possession or power-- of the person against whom the document is sought to be proved, or of ::: Downloaded on - 31/03/2026 20:31:38 :::CIS 10 ( 2026:HHC:9397 ) any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not .
produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents of cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
rt
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence;
(g) when the original consists of numerous accounts or other documents which cannot conveniently be examined in Court and the fact to be proved is the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
::: Downloaded on - 31/03/2026 20:31:38 :::CIS11 ( 2026:HHC:9397 )
19. Perusal of Section 65-A of the Act would show that it deals with the situation, where secondary evidence be given of .
the existence, condition or content of a document (a) when the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved.
20. This provision deals with the condition which is not of the case in the instant hand. Then, secondly it states of any person out of reach of or not subject to the process of the Court rt or of any person legally bound to produce it and when after the notice mentioned in Section 66, such person does not produce it.
21. It is contended by learned Counsel for the petitioner that in terms of Section 65-A of the Indian Evidence Act the first two conditions are not applicable in the present case and, in case, it is presumed that the document has to be produced by any person legally bound to produce it, then it was incumbent upon defendant No.1 to have summoned the Revenue Officer in the witness box by issuing necessary notice under the Act. He has urged that the defendant/ respondent has not followed the procedure as neither the Revenue Officer has been summoned in the witness box nor any notice has been issued for doing the same.
22. Mr. Piyush Dhanotia, Advocate, has further submitted that in case defendant No.1 states that her case is ::: Downloaded on - 31/03/2026 20:31:38 :::CIS 12 ( 2026:HHC:9397 ) covered under Section 65-C of Indian Evidence Act, in that event the defendants/ respondents are required to establish that the .
original has been destroyed or lost or when the party offering evidence of its contents cannot, for any other reasons not arising from his own default or neglect, produce it in reasonable time. The defendants/respondents have not been able to prove of as to whether any such original document exists or not. Further, has submitted that it has also not been substantiated that the rt said original document has been destroyed or lost. Further, that the said document was destroyed or lost not arising for his own default or neglect. Therefore, as per Mr. Piyush Dhanotia, the provisions of Section 65-C also does not help or cover the case of the defendant/respondent. He has contended that in order to prove her case the first requirement is to prove that the original document is existed, then the second requirement is that the said document has been destroyed or lost and thirdly that the said document was lost or destroyed not arising from her own default or neglect. He also submitted that none of conditions/parameters as laid down under the Act has been fulfilled despite that fact the learned trial Court has allowed the application in a mechanical manner.
23. The contentions as raised by learned counsel for the petitioner have been refuted by learned counsel for the ::: Downloaded on - 31/03/2026 20:31:38 :::CIS 13 ( 2026:HHC:9397 ) respondents. He has submitted that his case is covered by the provisions of Section 65-C of the Act since the original copy of .
the will was given to the Revenue Authorities for attestation of mutation and, thereafter, it is not traceable and is missing. He has further submitted that since various numerous steps were taken in this regard by filing CDI forms to obtain the original copy of of the same and by applying under the Right to Information Act, he submits that therefore, his client has made out a case for rt invoking the provisions of Section 65-C for proving the unregistered Will by way of secondary evidence.
24. The Hon'ble Apex Court in Civil Appeal No. 1889 of 2020, titled Jagmail Singh and another vs. Karamjit Singh & others, decided on 13.05.2020 has held that it is settled position of law that for secondary evidence to be admitted foundational evidence has to be given being a reason as to why the original evidence has not been furnished. It has been laid down by the Hon'ble Apex Court that it is trite that under the Indian Evidence Act, 1872, facts have to be established by primary evidence and secondary evidence is only an exception to the rule, for which foundational facts have to be established to account for the existence of the primary evidence.
25. The Apex Court reiterated that where the original documents are not produced without a plausible reason and ::: Downloaded on - 31/03/2026 20:31:38 :::CIS 14 ( 2026:HHC:9397 ) factual foundation for laying secondary evidence not established, it is not permissible for the Court to allow a party to adduce the .
secondary evidence.
26. Before accepting the averments as made by defendants/ respondents with regard to the loss of documents sought to be relied upon. It is incumbent upon the of defendants/respondents to establish on record that the said document was in existence and the same has been rt lost/misplaced. Mere assertion made in the application with regard to the loss/misplacement of the document cannot be sufficient. Rather in that regard, some cogent and convincing evidence is required to be led on record. Apart from above, person seeking to lead secondary evidence is also required to prove that the document sought to be relied upon was in existence but the same was misplaced/ lost.
27. In the case at hand, when the plaintiff/petitioner denied the claim of the defendant/respondent that the document sought to be proved by way of secondary evidence was lost/misplaced. Learned Court below ought to have framed issues so that parties could have led evidence and establish their claim. More so, there is no averment in the application that the photocopy of the alleged Will as has been placed on record with the written statement, there is no averments with regard to the ::: Downloaded on - 31/03/2026 20:31:38 :::CIS 15 ( 2026:HHC:9397 ) fact that the said photocopy of the Will had been prepared from the original. It has also not been pleaded that who prepared the .
Will and who compared the same.
28. Provisions contained under Section 65 of the Indian Evidence Act clearly provide that the secondary evidence can be led when the existence, condition or contents of the original have of been proved to be admitted in witting by the person against the whom it is proved or by his representative-in-interest when the rt original has been destroyed or lost and when party offering evidence of its contents cannot for any other reason, not arising from his own default neglect, produce it in the reasonable time.
In the case in hand, from the perusal of the application filed by the defendant/respondent it reveals that there is only mere assertion or averment with regard to the misplacement or loss of the document. However, the same is not sufficient to lead secondary evidence rather, onus to prove misplacement/ loss to have benefit of Section 65-C of the Indian Evidence Act is on the party seeking to prove the documents by way of secondary evidence. It is incumbent and rather required to be proved that the document sought to be proved relied upon was misplaced /lost for any reason not arising from his own conduct and neglect.
::: Downloaded on - 31/03/2026 20:31:38 :::CIS16 ( 2026:HHC:9397 )
29. A Co-ordinate Bench of this Court, in Civil Revision No. 143 of 2022, titled Bharti Sharma & another vs. Naresh .
Kumar & others, decided on 21.10.2022 has led down the parameters for adducing the secondary evidence in the following manner:
12. Since in the case at hand, plaintiffs specifically denied the averments contained in the application of that the defendants had handed over original copy of Will to their counsel for getting mutation entered and he lost the same, court below before considering prayer made on behalf of the defendants for secondary evidence ought to have rt framed issues and allowed the parties to lead evidence and thereafter, the learned Court below ought to have proceeded to decide the application.
Reliance in this regard is placed upon Amar Nath supra, wherein, it has been held as under:
"3. I have heard learned counsel for the parties and gone through the record.
4. Relying upon the judgments rendered by the Hon'ble Supreme Court in cases of J.
Yashoda Vs. K. Shobha Rani, (2007) 5 Supreme Court Cases, 730, M. Chandra Vs. M. Thangamuthu, (2010) 9 Supreme Court Cases 712, H. Siddiqui Vs. A. Ramalingam (2011) 4 Supreme Court Cases 240 & U. Sree Vs. U. Srinivas, (2013) 2 Supreme Court Cases 114, it can be concluded that secondary evidence in respect of an ordinary document can be allowed in case following requirements inter-alia amongst others are met :-
i) For leading secondary evidence, non production of the document in question has to be properly accounted for by giving cogent reasons inspiring confidence.
ii) The party should be genuinely unable to produce the original of the document and it should satisfy the Court that it has done ::: Downloaded on - 31/03/2026 20:31:38 :::CIS 17 ( 2026:HHC:9397 ) whatever was required at its end. It cannot for any other reason, not arising from its own default or neglect produce it.
.
iii) Party has proved before the Court that document was not in his possession and control, further that he has done, what could be done to procure the production of it.
iv) The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original.
of
30. The Co-ordinate bench of this Court relying upon the judgments of this Court and while discussing the entire case law rt of the Hon'ble Apex Court in Civil Revision No. 143 of 2022, titled as Bharati Sharma & others vs. Naresh Kumar & others , dated 21.10.2022 has held as follows:
"9. In the instant case, when plaintiffs specifically denied the claim of the defendants that the document sought to be proved by way of secondary evidence was lost/misplaced by their counsel, learned Court below ought to have framed issue(s) so that parties could lead evidence and establish their claim. Reliance in this regard is placed upon Suresh Kumar supra, wherein, it has been held as under:
""7. At this moment, this Court finds that the documents whether exists or not; destroyed or not; or are in the possession of same person or not; or can be produced before the learned Court below or whether the secondary evidence is to be allowed or not, in view of the nonproduction of the document is not available, which is pending adjudication. So, the learned Court below is within its right to frame issues in this regard. This Court finds that there is no illegality in the impugned order dated ::: Downloaded on - 31/03/2026 20:31:38 :::CIS 18 ( 2026:HHC:9397 ) 11.1.2018, passed by the learned Court below, which cannot be said to be without any basis."
.
10. So far averment that the photocopy of certified copy of the Will is already on record, there is no specific averment in the application that the photocopy of the Will on record has been prepared from the original. It is also not pleaded that who prepared the Will and who compared the same. Provisions contained under S. 65 of the Indian Evidence Act, of reproduced above, clearly provide that the secondary evidence can be led, when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his rt representative in interest; 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; when the original is of such a nature as not to be easily movable. Secondary evidence of contents of documents is admissible, however, certified copy of Will is not admissible per se in evidence, but same can be proved by way of leading secondary evidence.
11. Though, the defendants who have filed photocopy of the certified copy of Will sought to be relied upon by them alongwith written statement, are entitled to lead secondary evidence to prove the Will but for that purpose, they are required to prove by leading cogent and convincing evidence that the Will sought to be proved by way of secondary evidence was in existence but the same has been lost or misplaced by their counsel, as has been claimed in the application. Mere assertion /averment with regard to misplacement /loss of document may not be sufficient to lead secondary evidence rather, onus to prove misplacement/loss to have benefit of S.65(c) of the Indian Evidence Act is on the party seeking to prove the document by way of ::: Downloaded on - 31/03/2026 20:31:38 :::CIS 19 ( 2026:HHC:9397 ) secondary evidence. It is required to be proved that the document sought to be relied upon was misplaced/lost, for any reason not arising from his own conduct/neglect.
.
12. Since in the case at hand, plaintiffs specifically denied the averments contained in the application that the defendants had handed over original copy of Will to their counsel for getting mutation entered and he lost the same, court below before considering prayer made on behalf of the defendants for of secondary evidence ought to have framed issues and allowed the parties to lead evidence and thereafter, the learned Court below ought to have proceeded to decide the application. Reliance in this regard is placed rt upon Amar Nath supra, wherein, it has been held as under:
"3. I have heard learned counsel for the parties and gone through the record.
4. Relying upon the judgments rendered by the Hon'ble Supreme Court in cases of J. Yashoda Vs. K. Shobha Rani, (2007) 5 Supreme Court Cases, 730, M. Chandra Vs. M. Thangamuthu, (2010) 9 Supreme Court Cases 712, H. Siddiqui Vs. A. Ramalingam (2011) 4 Supreme Court Cases 240 & U. Sree Vs. U. Srinivas, (2013) 2 Supreme Court Cases 114, it can be concluded that secondary evidence in respect of an ordinary document can be allowed in case following requirements inter-alia amongst others are met :-
i) For leading secondary evidence, non production of the document in question has to be properly accounted for by giving cogent reasons inspiring confidence.
ii) The party should be genuinely unable to produce the original of the document and it should satisfy the Court that it has ::: Downloaded on - 31/03/2026 20:31:38 :::CIS 20 ( 2026:HHC:9397 ) done whatever was required at its end. It cannot for any other reason, not arising from its own default or neglect produce it.
.
iii) Party has proved before the Court that document was not in his possession and control, further that he has done, what could be done to procure the production of it.
iv) The secondary evidence must be of authenticated by foundational evidence that the alleged copy is in fact a true copy of the original.
5. The record of the case clearly indicates that in rt the written statement, even the date of the agreement is not mentioned. The written statement was filed on 18.06.2012. The matter was fixed for defendant's witnesses w.e.f. 22.11.2014. The application for leading secondary evidence was moved on 10.07.2017, five years after the filing of written statement.
The reason for delay advanced by the petitioner/defendant that he came to know about the existence of only photocopy of the agreement in the court file, at the time of examination of defendant's witnesses, does not inspire confidence. From 22.11.2014, the matter was fixed for defendant's witnesses. The record of learned Court below demonstrates that statements of DW No.1, DW No.2,DW No.3 had already been recorded on 20.12.2016. There is no reason forthcoming in the application, which sufficiently and cogently explains the delay in moving the application.
6. The requirements laid down under Sections 63 and 65 of the Indian Evidence Act for permission to lead secondary evidence are not met in the instant case. There is no averment made in the application that the photocopy of the agreement on the record is made from the original, when it was made and who compared it. The loss of the original agreement has not been accounted for in accordance with the provisions ::: Downloaded on - 31/03/2026 20:31:38 :::CIS 21 ( 2026:HHC:9397 ) of Section 65 of the Indian Evidence Act. The application is bereft of the particulars, which are required for discharging the proof, required under Section 65 of the Indian Evidence Act.
.
7. Merely, a vague averment made in the application that the document has not been traced, is not sufficient to allow the application for leading secondary evidence. Therefore, no illegality can be found in the order passed by the learned Trial Court."
of
13. Hon'ble Apex Court in Kalyan Singh supra, has held that ordinarily copy of sale deed is not secondary evidence but certified copy of sale deed may be produced as secondary evidence in the absence of the original. Hon'ble Apex rt Court held as under:
"25. The High Court said, and in our opinion very rightly, that Ex. 3 could not be regarded as secondary evidence. Section 63 of the Evidence Act mentions five kinds of sec-ondary evidences. Clause (1), (2) and (3) refer to copies of documents; clause (4) refers to counterparts of documents and clause (5) refers to oral accounts of the contents of documents.
Correctness of certified copies referred to in clause (1) is presumed under Section 79; but that of other copies must be proved by proper evidence. A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case Ex. 3 is not a certified copy. It is just an ordinary copy. There is also no evidence regarding contents of the original sale deed. Ex. 3 cannot, therefore, be considered as secondary evidence. The appellate Court has a right and duty to exclude such evidence."
14. In the case at hand, as has been averred in the application that the photocopy of certified copy was annexed with the written statement, but it is just an ordinary copy as such, learned ::: Downloaded on - 31/03/2026 20:31:38 :::CIS 22 ( 2026:HHC:9397 ) Court below, before allowing prayer made on behalf of the defendants, was required to frame issue(s) in this regard."
.
31. In the present case alongwith the written statement, photocopy of the document i.e. Will has been annexed but this is just a photocopy as such the Court below before allowing the prayer made on behalf of the defendant was required to come to of the conclusion that the Will sought to be proved by way of secondary evidence was in existence but the same has been lost rt or misplaced by the revenue authority. Mere assertion with regard to misplacement or loss of document may not be sufficient to lead secondary evidence. It is required to be proved that the document sought to be relied upon was misplaced /lost for any reason not arising from his own conduct/negligence.
32. Since in the present case, plaintiff/petitioner specifically denied these averments contained in the application that the defendants had handed over the original Will to the revenue authority for attestation of mutation, Court below before considering prayer made by defendants/respondent for secondary evidence ought to have framed issues and allowed the parties to lead evidence and thereafter, the learned trial Court ought to have proceeded to decide the application. In the absence of doing so the Court below has erred while passing the impugned order.
::: Downloaded on - 31/03/2026 20:31:38 :::CIS23 ( 2026:HHC:9397 )
33. Learned counsel for the petitioner has rightly pointed out that the ingredients of Section 65-C have neither been .
pleaded nor proved and even the trial Court has not passed a well reasoned and speaking order in order to allow the application filed by the defendant No.1 for leading secondary evidence to prove the unregistered Will.
of
34. Learned trial Court has not gone into this aspect of the matter which has been reiterated by the Hon'ble Apex Court rt in various judgments. Therefore, the only option which is available to this Court is to quash and set-side the impugned order as passed by the learned trial Court and to remit back the matter to the learned Senior Civil Judge, Amb, District Una, H.P. to decide the application afresh in the light of the observations made in the instant order. Ordered accordingly.
35. The case file reveals that the suit was filed by the plaintiff in the year 2014. The defendant had also filed the written statement in 2014. Now after elapse of more than 10 years, when the case was fixed for the evidence of the defendants, the application has been filed in order to fill up the gaps and the lacuna after a considerable period that too after framing of the issues and at the stage of the evidence on behalf of the defendants. The conduct of the defendant speaks volume and it ::: Downloaded on - 31/03/2026 20:31:38 :::CIS 24 ( 2026:HHC:9397 ) creates doubt in the mind of the Court for filing such application at a belated stage.
.
36. The learned trial Court has not assigned reasons to allow the application filed by the defendants. This Court has been persuaded by Sh. Piyush Dhanotia, Advocate that at least reasons are required to be assigned while deciding the of application either way. The order as passed by the learned trial Court does not meet the requirements of law, which clearly stipulates rt for passing speaking order while adjudicating the claim in hand between the parties.
37. In view of the aforesaid discussion, I find merit in the instant petition and after setting aside the impugned order dated 11.06.2025 the present petition is allowed, in the aforesaid terms. The learned Trial Court is directed to decide the instant application afresh in view of the observation as made here-in-
above.
All the pending miscellaneous application(s) if any, shall also stands disposed off.
(Romesh Verma) Judge March 30, 2026 (Nisha) ::: Downloaded on - 31/03/2026 20:31:38 :::CIS