2025:HHC:33378 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No. 215 of 2022 Decided on : 25.09.2025 Ramesh Kumar and another …Petitioners Versus Hardei and others …Respondents Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge Whether approved for reporting?1 For the petitioners : Mr. Sunil Chauhan, Advocate. For the respondents : None. Ajay Mohan Goel, Judge (Oral) By way of this petition, the petitioners have, inter alia, prayed for the following reliefs:- “It is, therefore, most humbly and respectfully prayed that the impugned order dated 10.05.2022, Annexure P-6, passed by the Learned Senior Civil Judge, Mandi, District Mandi, H.P. passed in CMA No. 143-VI/18 in Civil Suit No. 43/2 of 2013, titled Hardei Versus Ramesh Kumar and others, vide which the application under Section 65 of the Indian Evidence Act for seeking permission to prove the Will dated 07.07.2007 by way of secondary evidence filed by the 1Whether reporters of the local papers may be allowed to see the judgment? 2 2025:HHC:33378 respondent/plaintiff has been allowed, may kindly be quashed and set aside in the interest of justice and fair play.” 2. As none has appeared for the respondents either on the previous date or today, the respondents stand proceeded against exparte. 3. The petitioners are aggrieved by Order dated 10.05.2022, passed by learned Senior Civil Judge, Mandi, District Mandi, H.P, in CMA No. 143-VI/18 in Civil Suit No. 43/2 of 2013, titled Hardei Vs. Ramesh Kumar and others, in terms whereof, an application filed under Section 65 of the Indian Evidence Act (wrongly mentioned as Section 66 of Indian Evidence Act in the impugned order), was allowed. 4. A perusal of the impugned order demonstrates that the following findings were returned by the learned Trial Court, while allowing the application:- “5. The perusal of the case file reveals that the plaintiff has filed the present suit on the basis of Will dated 07.07.2007. The applicant has alleged that the said Will dated 07.07.2007 after registration was handed over to her counsel Sh. Sandeep Sharma. Sh. Sandeep 3 2025:HHC:33378 Sharma has appeared before the court in view of the notice U/S 65 of Indian Evidence Act and has deposed that the Will dated 07.07.2007 is not in his possession and he has already handed over original Will dated 07.07.2007 to the plaintiff/applicant. Hence, as the person in whose possession, the Will dated 7.7.2007 is alleged by the applicant/plaintiff, has denied the possession of such Will and as the applicant/plaintiff has also submitted in the application that the alleged original will dated 7.7.2007 is not traceable despite her best efforts, hence, the court is satisfied that the plaintiff/applicant has no other alternative to prove the alleged 2022 Will dated 7.7.2007 except by way of secondary evidence. Hence, for the observation hereinabove and in the interest of justice, present application U/S 65 of Indian Evidence Act is hereby allowed and the applicant is allowed to prove the alleged Will dated 07.07.2007 by way of secondary evidence. Application U/S 65 of the Indian Evidence Act accordingly stands disposed of, after due completion and registration be tagged with the main case file. Let, Pws be summoned for 27.06.2022.” 5. Having heard learned counsel for the petitioners 4 2025:HHC:33378 and having gone through the impugned order, this Court is of the considered view that the impugned order is perverse and not sustainable in the eyes of law. 6. Permission to lead secondary evidence could not have been granted by the learned Trial Court on the facts as were pleaded by the applicant before the learned Court below. The applicant alleged that Will dated 07.07.2007 after registration was handed over to Sandeep Sharma, Advocate, whereas, Sandeep Sharma, Advocate, deposed in the Court that he was not in possession of the said Will and he had handed back the original Will to the applicant. That being the case, the requirements of leading secondary evidence were not met at all and this extremely important aspect of the matter has been ignored by the learned Trial Court. 7. This Court again reiterates that the case of the applicant, who was the plaintiff before the learned Trial Court, was that the reason as to why the secondary evidence was required to be led to prove the Will was that the original Will was handed over to the lawyer concerned, who did not return it back to her. On the other hand, the stand of the lawyer was that 5 2025:HHC:33378 he had handed back the Will to the applicant i.e. the plaintiff. 8. Section 65 of the Indian Evidence Act, reads as under:- “65. Cases in which secondary evidence relating to documents may be given. - 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, of 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 cannot, for any other reason not arising from his own default or neglect, produce it in 6 2025:HHC:33378 reasonable time; (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 1[India] to be given in evidence; (g) when the originals consist 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.” 7 2025:HHC:33378 9. In the present case, none of the requirements prescribed in Section 65 of the Indian Evidence Act were met and this extremely important aspect of the matter was ignored by the learned Trial Court, while allowing the application. Learned Counsel erred in not appreciating that the filing of the application was nothing but an abuse of the process of law. 10. Therefore, in view of the above discussion, this petition is allowed. Order dated 10.05.2022, passed by learned Senior Civil Judge, Mandi, District Mandi, H.P, in CMA No. 143- VI/18 in Civil Suit No. 43/2 of 2013, titled Hardei Vs. Ramesh Kumar and others, is quashed and set aside. Pending miscellaneous application(s), if any, also stand disposed of accordingly. (Ajay Mohan Goel) Judge September 25, 2025 (Shivank Thakur)