Punjab-Haryana High Court
Malkiat Singh vs Rachhpal Singh And Others on 22 May, 2012
Author: L. N. Mittal
Bench: L. N. Mittal
C. R. No. 1771 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : C. R. No. 1771 of 2011
Date of Decision : May 22, 2012
Malkiat Singh .... Petitioner
Vs.
Rachhpal Singh and others .... Respondents
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
* * *
Present : Mr. Binderjit Singh, Advocate
for the petitioner.
Mr. Vaibhav Narang, Advocate
for the respondents.
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L. N. MITTAL, J. (Oral) :
By way of instant revision petition filed under Article 227 of the Constitution of India, plaintiff Malkiat Singh has impugned order dated 28.02.2011 (Annexure P-5), passed by learned Additional Civil Judge (Senior Division), Bathinda, thereby allowing application (Annexure P-3) moved by defendants for permission to lead secondary evidence of the Will dated 09.02.2002.
Defendants alleged in application (Annexure P-3) that the original Will was produced in mutation proceedings, but file of the mutation C. R. No. 1771 of 2011 2 containing original Will has been lost, as stated by concerned official.
Plaintiff opposed the application by filing reply alleging that loss of the original Will has not been proved. Concerned official stated about loss of mutation file, but did not state that original Will was also in the mutation file. Various other pleas were also raised.
Learned trial court, vide impugned order (Annexure P-5), allowed the application filed by the defendants and permitted them to lead secondary evidence of the Will, subject to proving existence of the original Will and subject to all other just exceptions. Feeling aggrieved, plaintiff has filed this revision petition.
In order dated 08.12.2011, it was noticed that counsel for the respondents stated that certified copy of the Will in dispute is on the record of the trial court, but counsel for the petitioner contended that the respondents mentioned about photostat copy of the Will only in the application. Accordingly, respondents were directed to file better affidavit in this regard. Pursuant thereto, affidavit of respondent no.1, filed today in Court by counsel for the respondents, is taken on record, subject to all just exceptions. Copy given to the opposite counsel.
I have heard learned counsel for the parties and perused the case file.
Counsel for the petitioner contended that respondents have not proved that the original Will was produced in mutation file and thus, loss of original Will is not proved. It was contended that only photostat copy of the C. R. No. 1771 of 2011 3 Will was produced in mutation proceedings and the plaintiff-petitioner obtained certified copy thereof and produced the same with plaint in the instant suit. It was also submitted that the Will was not exhibited even in mutation proceedings.
Counsel for the petitioner also referred to affidavit Annexure P- 8 of Jagdev Singh - Scribe and affidavit Annexure P-9 of Baldev Singh - attesting witness of the Will, wherein they have stated that they had seen the original Will, which is Ex.D-1 and it was thus argued that the original Will was not produced in mutation proceedings.
Counsel for the respondents, on the other hand, contended that the original Will was produced in mutation proceedings and file of mutation containing the original Will had been lost, and therefore, respondents have been rightly granted permission to lead secondary evidence of the Will, subject to necessary exceptions.
I have carefully considered the rival contentions.
The very fact that the plaintiff-petitioner could obtain certified copy of the Will from mutation proceedings would prima facie depict that the original Will was produced in mutation proceedings. Contention of counsel for the plaintiff-petitioner that only photostat copy of the Will was produced in mutation proceedings cannot be accepted because no such plea was even raised in reply (Annexure P-4) and also because certified copy of photostat copy of the Will would not have been supplied because certified copy of a copy is not supplied and it would depict that original Will was C. R. No. 1771 of 2011 4 there in the mutation proceedings because certified copy thereof has been supplied.
As regards affidavits (Annexures P-8 and P-9), counsel for the petitioner is not even aware whether these have been tendered in evidence as examination-in-chief or not. However, counsel for the respondents explained that the Will was sought to be produced as Ex.D-1 in anticipation that the original would be available, but the original Will could not be made available as mutation file was lost, and therefore, application for secondary evidence had to be moved. There is considerable force in the submission of counsel for the respondents. If as per affidavits (Annexures P-8 and P-9), the original Will was available at that time, the same would have been on the file of the trial court as Ex.D-1, but admittedly, the original Will was not so produced on the file of the trial court.
For the reasons aforesaid, I find no merit in this revision petition. Respondents have been rightly granted permission to lead secondary evidence of the Will, subject to all just exceptions. There is no perversity, illegality or jurisdictional error in the impugned order of the trial court so as to warrant interference by this Court in exercise of revisional jurisdiction under Article 227 of the Constitution of India. The revision petition is meritless and is, therefore, dismissed.
May 22, 2012 ( L. N. MITTAL ) monika JUDGE