Full Judgment
Milap Chandra, J.
1. This revision petition has been filed under Section 115, CPC against the order of the Addl. District Judge, No. 2. Sri Ganganagar dt. 30-5-88 by which he rejected the petitioners application moved under Section 65 of the Indian Evidence Act seeking permission for producing secondary evidence to prove Will executed by Smt. Gauran. The facts giving rise to this revision petition may be summarised thus:
2. In the proceedings relating to the preparation of the final decree, a Will was set up by the non-petitioners in their defence. An application Under Section 65, Evidence Act was moved by them for permission to produce secondary evidence of the will on the ground that it is mis-placed or lost along with an affidavit of the petitioner Satya Prakash. The non-petitioner Devaram did not file any reply to this application. After hearing the parties, the learned trial court rejected the application by its order under revision.
3. It is contended by the learned Counsel for the petitioners that the learned trial court has acted illegally and with material irregularity in the exercise of its jurisdiction in rejecting the application particularly when the enclosed affidavit has gone unrebutted and unchallenged. Be further contended that if the petitioners would have been in possession of the Will they would have produced it otherwise they would have not moved the said application. He contended that there is no question of suppression of the original Will particularly when it is duly registered under the Registration Act. He also contended that the learned trial court should have asked for a supplementary affidavit if it was not satisfied with the affidavit enclosed with the application. He lastly contended that the every fact that the petitioners have come in revision against the order of the learned trial court itself indicates that the will is actually lost and is not traceable.
4. In reply, it is contended by the learned Counsel for the non-petitioner that the revision petition is not maintainable, the order of the learned trial court is discretionary and it is quite valid. He further contended that details of the search made by the petitioners are not even mentioned in the application and the affidavit. He also contended that the evidence of the parties have been closed, the date has been fixed for final arguments and as such there is now no question of taking evidence of the any party. He relied upon AIR 1968 Calcutta 532 AIR 1977 SC 1565 and AIR 1973 Rajasthan 263.
5. In reply to the contentions of the learned Counsel for the petitioners, he further contended that revision petition 90/89 has been filed against the order closing the evidence of the petitioners and notices have been issued by this court.
6. Admittedly, the disputed Will is said to be registered under the Registration Act. No counter, affidavit to the affidavit of the petitioner Satya Prakash was filed by the non-petitioner before the trial court It is clearly stated in para No. 2 of it that despite his best efforts, the original Will is not traceable. If the learned trial court was not satisfied with this uncontroverted and unchallenged affidavit of the petitioner Satya Prakash supplementary affidavit could be asked for. The trial court should have granted the application for producing secondary evidence of the Will particularly when it is registered. The very fact that the petitioners have come to this court challenging the order of the trial court refusing permission to produce secondary evidence leaves no doubt that the Will is not traceable and it is lost'
7. The facts of the case reported in AIR 1973 Raj 263 and AIR 1979 SC 1965 are quite different and distinguishable. In these cases, the dispute was about the nature of secondary evidence. It has simply been observed in AIR 1968 Calcutta 532 that the party must establish that he has exhausted all his resources and means in search of the documents which were available to him. This fact is proved from the uncontroverted and unchallenged affidavit of the petitioner Satya Prakash. As such, the petitioners are entitled to produce secondary evidence to prove the Will.
8. Consequently, the revision petition is allowed and the order of the Additional District Judge No. 2, Sri Ganganagar dated 30-5-88 is set-aside. The petitioners are allowed to produce secondary evidence to prove the Will. The non-petitioner will have an opportunity to produce his evidence in its rebuttal.