2025:HHC:28173 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.483 of 2025 Decided on: 20.08.2025 Anita Devi … Petitioner Versus Narain Singh & others … Respondents Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1Yes ____________________________________________________ _ For the petitioner : Mr. Servedaman Rathore, Advocate. For the respondents : No notice issued. Ajay Mohan Goel, Judge (Oral) By way of this petition, the petitioner has challenged the order passed by the Court of learned Senior Civil Judge, Nahan, District Sirmaur, H.P., in terms whereof, an application filed by the present petitioner under Section 65 of the Indian Evidence Act, 1872 has been dismissed. 2. Learned Counsel for the petitioner has vehemently argued that the impugned order is not sustainable in the eyes of law, for the reason that as it stood established from the evidence produced by the petitioner in the course of the adjudication of the application that the original Will was handed over to a Patwari by the petitioner for its attestation somewhere in the year 1995, who failed to do the needful and thereafter return the original Will, there was no impediment in allowing the application filed by the petitioner 1 Whether reporters of the local papers may be allowed to see the judgment? 2 2025:HHC:28173 to lead secondary evidence. Learned Counsel further submitted that even the record demonstrated that there was an entry qua the Will in the revenue record and this extremely important aspect of the matter was ignored by the learned Court below while dismissing the application. Accordingly, he prayed that the impugned order be set aside. 3. I have heard learned Counsel for the petitioner and have carefully gone through the impugned order as well as other documents placed on record. 4. The application filed by the petitioner under Section 65 of the Indian Evidence Act is appended with the petition as Annexure P-1. In terms of the averments made therein, this un- registered Will, dated 01.01.1995, was handed over by defendant Anita to a Halqua Patwari for its attestation and the Halqua Patwari after receiving the original Will had given his assurance to defendant Anita in the presence of her father that whenever Assistant Collector, 1st Grade or Assistant Collector, 2nd Grade will visit the Patwarkhana, the defendant shall be informed well in time in writing and shall be called upon to bring the witnesses and the scribe of the Will for attestation of mutation. The Halqua Patwari having failed to inform, also does not hand over the original Will back to the defendant. It is further averred in the application that as the said un-registered Will dated 01.01.1995 was misplaced by the Revenue 3 2025:HHC:28173 Agency and was not being found, therefore, the applicant be allowed to prove the copy of the Will by leading secondary evidence. 5. In terms of the impugned order, learned Court below has rejected the application by, inter alia, holding that the defendant was not able to establish the principles necessary as laid down under Section 65 of the Indian Evidence Act. Learned Court below held that the so called Halqua Patwari, to whom purportedly the copy of the original Will was handed over by the defendant was never summoned as a witness. Learned Trial Court further held that the record nowhere demonstrated that entry of the Will being referred to by the defendant was relatable to the same Will which was being propounded by the defendant. Thereafter, by referring to the judgments cited in the said order, learned Trial Court dismissed the application by holding that in the present case, as firstly the loss of documents was required to be established by the applicant, however, the same could not be established on record by the applicant. Learned Court held that the applicant preferred neither to examine any witness from the General Record Room to prove that the Will was lost, nor the applicant examined the Patwari, to whome according to her, she handed over the Will. On this basis, learned Trial Court rejected the application filed by the petitioner. 6. This Court is of the considered view that the reasoning given in the impugned order while rejecting the application filed by 4 2025:HHC:28173 the petitioner calls for no interference. At this stage, this Court would like to make an observation that in exercise of its power of superintendence under Article 227 of the Constitution of India, this Court is not to act as an Appellate Court and the Court is only to judge as to whether the order impugned before it suffers any perversity or not. If the view taken by the learned Court below is one of the views which could have been taken prudently on the basis of the facts before it, then the High Court is not to interfere with the said findings even if some other view could be taken. In the backdrop of said observation, I will decide the present petition. 7. Section 65 of the Indian Evidence Act, inter alia, provides cases in which secondary evidence relating to the documents may be given and the same 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, or 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; 5 2025:HHC:28173 (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 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 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 6 2025:HHC:28173 such documents. Certified Copy of Will Certified Copy of Will is not admissible per se in evidence. It cannot be presumed to be primary document which could be adduced in evidence and same could be proved only by leading secondary evidence; Sampat Singh v. Bhagwanti, AIR 2010 (NOC) (P&H). When attesting witness not necessary In case the document is registered then except in the case of will it is not necessary to call an attesting witness, unless the execution has been specifically denied by the person by whom it purports to have been executed; Ishwar Dass Jain (dead) through L.R. vs. Sohanlal (dead) by LRs. AIR 2000 SC 426.” 8. As per learned Counsel for the petitioner, the case of the petitioner falls under Clauses (b) and (c) of the said Section. Clause (b) of Section 65 of the Indian Evidence Act provides that when the existence, condition, 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, then the other party can be granted permission to lead secondary evidence. 9. In the present case, the existence of the Will being propounded by the petitioner is not admitted by the respondent/plaintiff. In fact, the plaintiff is disputing that such Will was ever made by Shri Bir Singh, who in fact, was the father of the plaintiff and uncle of the present petitioner, who was the defendant 7 2025:HHC:28173 before the learned Trial Court. 10. Therefore, in the absence of the existence or conditiond or contents of the said Will being admitted by the plaintiff, it cannot be said that Clause (b) of Section 65 of the Indian Evidence Act is attracted in the present case. 11. Clause (c) of Section 65 of the Indian Evidence Act provides 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, then also such a party can be allowed to lead secondary evidence. 12. Herein the case pleaded by the applicant is that the original was lost in a sense that the same was handed over to one Halqua Patwari. who did not, thereafter, return it back to the petitioner. Now, in terms of the averments made in the application, this Will which was an un-registered Will, was handed over to the Halqua Patwari somewhere in the month of June, 2009. If that is to be believed, then there is no cogent explanation which has come- forth that what effort was ever made by the petitioner from the year 2009 till today to obtain back the original un-registered Will from the said Halqua Patwari. Not only this, it is not the case of the petitioner that, thereafter, said Halqua Patwari was not traceable for any reason whatsoever. That being the case, no plausible explanation 8 2025:HHC:28173 has been given even before this Court as to what prevented the petitioner from summoning the said Halqua Patwari as her witness to prove the factum of the original Will having been handed over to the said Halqua Patwari. However, it is a matter of record that said Halqua Patwari was not summoned as a witness by the petitioner before the learned Trial Court. Therefore, this Court is of the considered view that even Clause (c) of Section 65 of the Indian Evidence Act can not be attracted in the present case. 13. Thus, as it is clearly borne out that the petitioner was not able to prove that the document in fact was lost in the mode and manner in terms of the averments spelled out in the application, the findings returned by the learned Trial Court while dismissing the application need no interference, as no case was made out by the petitioner so as to invoke the provisions of Section 65 of the Indian Evidence Act to permit the petitioner to lead secondary evidence. 14. In light of said observation, this petition is dismissed. Pending miscellaneous application(s), if any also stand disposed of accordingly. (Ajay Mohan Goel) Judge August 20, 2025 (Rishi)