Rajasthan High Court - Jodhpur
Om Prakash & Anr vs . on 14 October, 2015
Author: Arun Bhansali
Bench: Arun Bhansali
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:ORDER:
S.B. CIVIL WRIT PETITION NO.1413/2009
Om Prakash & Anr.
vs.
Ram Vilas & Ors.
Date of Order :: 14th October, 2015
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
Mr. Narendra Thanvi, for the petitioner.
Mr. M.R. Singhvi, Senior Advocate assisted by
Mr. Bhavit Sharma )
Mr. B.K. Vyas ), for the respondents.
----
BY THE COURT:
This writ petition under Article 227 of the Constitution of India has been filed by the petitioners-defendant Nos. 4 and 5 against rejection of their application under Section 65 of the Evidence Act, 1872 ('the Evidence Act').
Respondent No. 1 - Ram Vilas filed a suit claiming that he was adopted son of late Kishnoji, who was Pujari of the temple and prayed for a declaration that plaintiff is entitled to perform Sewa Puja and receive the offerings as adopted son and he was the only heir of Kishnoji.
The suit was, inter alia, resisted by the petitioners based on a Will dated 18.04.1969 executed by Kishnoji.
During the pendency of the suit, the petitioners filed application dated 10.03.1995 under Section 65 of the Evidence Act, wherein, it was claimed that duly compared photo copy of the Will dated 18.04.1969 was on record and the original Will has been eaten away 2 by termites and has been destroyed, therefore, they may be permitted to lead secondary evidence. The application was allowed by the trial court on the same day i.e. 10.03.1995 on payment of cost of Rs. 500/-.
Whereafter, when the petitioners filed their affidavits in evidence and marked the Will as exhibit, the same was opposed by the respondents and the trial court by its order dated 27.05.2006 directed that till the petitioners produce the original Will with the permission of the Court and mark the same as exhibit, till such time, the Will Exhibit- A/1 indicated in the affidavit and the related portion of the affidavit will not be read in evidence.
Whereafter, the petitioners again filed affidavits dated 18.11.2006 in evidence and when again objections were raised, by order dated 06.01.2007 the trial court ordered that in view of order dated 10.03.1995 permitting leading of secondary evidence, the compliance of order dated 27.05.2006 stands fulfilled and the affidavits dated 04.03.2006 itself can be used as evidence and, consequently, directed that the affidavits dated 04.03.2006 are accepted and the fresh affidavits dated 18.11.2006 were declined.
Feeling aggrieved, respondent - Jagdish Prasad filed S.B. Civil Writ Petition No. 855/2007, wherein, by order dated 01.05.2007 it was ordered by this Court as under:-
"When the matter came up, it was heard from 2nd April, 2007 onwards, and during course of hearing, Mr. Thanvi learned counsel for the respondent was directed orally to find out, and make available for perusal of the Court the original Will, in whatever condition it may be, and on the last date of hearing being 27.4.2007, learned counsel had shown the document. In that view of the matter, since the original is available with the respondent, I think it appropriate to direct the respondent to produce in the trial Court the original Will in whatever condition it is.
In that view of the matter, since the original is being 3 produced, obviously the objection raised in Annex.8, about marking on the copy, in absence of original, no more survives. That being the position, the portions of the affidavit obviously cannot be deleted, and thus, the order does not require any interference.
The writ petition is, accordingly, disposed of."
Whereafter, the petitioners produced the Will "in whatever condition it was" before the trial court.
Whereafter, again an application was filed by the respondents seeking to prevent the petitioners from exhibiting the Will. The trial court by its order dated 21.07.2007 rejected the application filed by the petitioners.
Feeling aggrieved, respondent - Jagdish Prasad filed S.B. Civil Writ Petition No. 4595/2007, wherein, by order dated 07.01.2008 the writ petition was allowed and the order of the trial court dated 21.07.2007 was quashed and set aside. It was directed by this Court as under:-
"5. I have heard the learned counsel for the parties and perused the record.
6. In the opinion of this Court, in view of the subsequent developments in the case at the time of hearing of earlier writ petition No.855/2007 decided on 1.5.2007, in view of the fact that the original Will was produced by the respondents before this Court and later on in pursuance of directions of this Court before the trial Court, there is no occasion for the trial Court to take in evidence secondary evidence in the form of photo copy of the Will in question. It is needless to say that when primary evidence is available, no secondary evidence can be led.
7. The secondary evidence can be produced before the Court only in the circumstances narrated in Section 65 of the Indian Evidence Act. Clause (c) of Section 65 stipulates that 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, such secondary evidence can be produced.
8. In view of the aforesaid fact situation that the original Will has now been produced in the trial Court, there is no occasion to take in secondary evidence in the form of photo copy of the same document in question, namely, the Will. Therefore, the trial Court has erred in rejecting the application of the present petitioner by the impugned order dated 21.7.2007.4
9. Accordingly this writ petition is allowed and the impugned order of the trial Court dated 21.7.2007 is quashed and set aside. No order as to costs. Let the trial of the suit be expedited by the trial Court."
Whereafter, the present application under Section 65 of the Evidence Act was filed by the petitioners, inter alia, indicating that the original Will was produced in terms of order dated 01.05.2007 though the same was in totally torn and illegible condition on account of the same being termite eaten; the document has been destroyed and is not legible and, therefore, permission to lead secondary evidence be granted; permission was already granted on 10.03.1995, which was not challenged and the cost was accepted by the respondents and it was prayed that petitioners may be permitted to lead secondary evidence.
The application was opposed by the respondents and it was submitted that existence of the Will itself was disputed and it was submitted that in view of the orders passed by the High Court, the permission cannot be granted.
The trial court after hearing the parties by its impugned order dated 17.05.2008, rejected the application, inter alia, on the ground that as High Court by its order dated 21.07.2007 has already disposed of the aspect regarding leading of secondary evidence, the application was baseless and meaningless.
It is submitted by learned counsel for the petitioners that the trial court was not justified in rejecting the application filed by the petitioners; no order dated 21.07.2007 passed by the High Court exists; the trial court failed to appreciate that the document was termites bitten and a compared copy of the original document was already on record and, therefore, the secondary evidence should have 5 been permitted by the trial court; the judgments cited have not been taken into consideration; the order dated 07.01.2008 passed by this Court in S.B. Civil Writ Petition No. 4595/2007 cannot be used for the purpose of denying the leading of secondary evidence in view of the condition of the document.
It was further submitted that permission to lead secondary evidence had already been granted by the trial court by its order dated 10.03.1995 and on account of misconception the order dated 27.05.2006 came to be passed by the trial court, which was corrected by order dated 21.07.2007 and merely because this Court directed filing of the Will "in whatever condition it was", cannot be read as taking away the right of the petitioners to lead secondary evidence; it was further submitted that the order dated 07.01.2008 cannot be read as debarring the petitioners from filing the application and, therefore, the order impugend deserves to be quashed and set aside.
Learned counsel for the respondents vehemently opposed the submissions made by learned counsel for the petitioners; it was submitted that by order dated 07.01.2008 passed in S.B. Civil Writ Petition No. 4595/2007, this Court has categorically declined leading of secondary evidence qua the Will in view of the order dated 01.05.2007 passed in S.B. Civil Writ Petition No. 855/2007 and, therefore, now the petitioners cannot raise the issue all over again based on different arguments and/or any alleged change in the circumstances; it was prayed that the writ petition deserves to be dismissed.
I have considered the submissions made by learned counsel for the parties and have perused the material placed on record along with the original record of the trial curt.
A bare look at the material available on record of the trial court 6 clearly reveals that petitioners were granted permission under Section 65 of the Evidence Act by order dated 10.03.1995; ignoring the said order dated 10.03.1995, the trial court passed the order dated 27.05.2006 and the said order dated 27.05.2006 was sought to be retrieved/corrected by the trial court by order dated 06.01.2007, wherein, noticing the order dated 10.03.1995 permitting leading of secondary evidence it was held that the exhibits marked by the petitioners based on the compared copy of the Will available on record was justified; the said order was challenged by the respondent - Jagdish Prasad before this Court and this Court by its order dated 01.05.2007 directed the petitioners to produce the original Will "in whatever condition it is" and further held that the portions of the affidavits, which were objected to by the respondents cannot be deleted and the order passed by the trial court did not require any interference, meaning thereby that the affidavits filed by the petitioners marking the compared copy of the Will as exhibit was approved by this Court; however, the said aspect was again questioned by the respondents by filing application before the trial court, which came to be decided by order dated 21.07.2007 and the plea raised by the respondents seeking to prevent the petitioners from exhibiting the compared copy of the Will was rejected.
The said order dated 21.07.2007 was challenged by the respondents before this Court and this Court by order dated 07.01.2008, as quoted hereinbefore, categorically held that there was no occasion to take in secondary evidence in the form of photo copy of the same document in question viz. the Will and further held that the trial court erred in rejecting the application by its order dated 21.07.2007, allowed the writ petition and order dated 21.07.2007 was 7 quashed.
The submissions made by learned counsel for the petitioners based on provisions of Sections 63(3) and 65(c) of the Evidence Act may have some substance in view of the condition of the original document filed as Will, which has been filed "in whatever condition it is", which is termites bitten pieces of document having been laminated and a copy of the document with endorsement of comparison by the civil clerk of the trial court is already on record. However, there is an insurmountable difficulty before the petitioners in seeking any relief from this Court, in view of the order dated 07.01.2008 passed by this Court, wherein, qua the same document based on the material available on record, this Court has categorically held that secondary evidence in the form of photo copy of the document in question viz. the Will cannot be taken in i.e. produced. Admittedly, petitioners did not question the validity of the order dated 07.01.2008 and, therefore, the said order has become final.
Hon'ble Supreme Court in several judgments starting from Arjun Singh v. Mohendra Kumar & Ors. : AIR 1964 SC 993 has held that res judicata would be as much applicable to different stages of the same suit as to findings on issues in different suits.
The above principle was reiterated in Bhanu Kumar Jain v. Archana Kumar & Anr. : (2005) 1 SCC 787, wherein, Hon'ble Supreme Court observed as under:-
"18. It is now well settled that principles of res judicata apply in different stages of the same proceedings. (See Satyadhyan Ghosal v. Deorajin Debi and Prahlad Singh v. Col. Sukhdev Singh.)
19. In Y.B. Patil it was held : (SCC p. 68, para 4) "4. ... It is well settled that principles of res judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage 8 of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceeding."
As noticed hereinbefore, in the same suit, issue regarding permitting of secondary evidence after order dated 01.05.2007 passed by this Court directing petitioners to produce the original Will "in whatever condition it is" has already been settled by order dated 07.01.2008 passed by this Court, the said order dated 07.01.2008 would operate as res judicata and now it is not open for the petitioners to seek a direction for leading secondary evidence unless the order dated 07.01.2008 is varied by way of appropriate proceedings.
In view of the above discussion, there is no substance in the writ petition and the same is, therefore, dismissed. No order as to costs.
(ARUN BHANSALI), J.
A.K.Chouhan/-