IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CMPMO No. 26 of 2023 Decided on: 17.09.2025 ____________________________________________________ Naresh Kumar and another ……….. petitioners Versus Bharti Sharma and another ……….respondents ____________________________________________________ Coram: Hon'ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting? 1 For the petitioners : Mr. P.S. Goverdhan, Sr. Advocate, with Mr. Vivek Attri, Advocate. For the respondents : Mr. Ajay Sharma, Sr. Advocate, with Mr. Tarun Brakta, Advocate. ____________________________________________________ Bipin Chander Negi, Judge (oral) The present petition has been preferred seeking the following relief:- “(a) Kindly quash the impugned order dated 2.12.2022 (Annexure P-1X) and allow the petitioners to lead secondary evidence of the registered Will dated 27.5.2014 before the learned Court below. 2. Heard counsel for the parties. Perused the impugned order and the documents appended alongwith the present petition. 3. The respondents in the case at hand are the plaintiffs before the trial Court. They have filed a suit for declaration claiming ownership of the suit land, on the basis of the same being a Joint Hindu Family Coparcenary Ancestral Property. Per contra, the present 1 Whether the reporters of the local papers may be allowed to see the judgment? 2 petitioners/defendants claims a stake on the suit land on the basis of a Will dated 29.5.2014 made by one Surender Kumar. 4. Admittedly, the original Will dated 29.5.2014 is not on record. Hence, in the aforesaid facts and attending circumstances, an application was filed on behalf of the petitioners/defendants for leading secondary evidence in the case at hand qua the Will dated 29.5.2014. 5. In the application so filed for leading secondary evidence, the petitioners/defendants have averred that for the purpose of entering a mutation based on the Will dated 29.5.2014, the Will had been supplied to the Patwari concerned in October 2016. The same was never taken back from the Patwari. It is only when the counsel for the petitioners/defendants asked the petitioners/defendants to bring the original, it is only thereafter that the petitioners/defendants demanded the original from the Patwari concerned. The Patwari concerned informed the petitioners/defendants that he had misplaced the same. The application in the case at hand for leading secondary evidence has been filed in November, 2021. 6. At this stage, it would be appropriate to take note of Section 64 and 65 of the Indian Evidence Act. The same have been reproduced for a ready reference:- :64 Proof of documents by primary evidence.- Documents must be proved by primary evidence except in the cases hereinafter mentioned. 65 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, 3 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 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 In case of the document the written (b). admission IS admissible. is admissible. In case (e) or (f), a certified copy of the document, but no other is admissible. kind of secondary evidence. 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. In terms of Section 65 of the Indian Evidence Act, the loss of the original Will in the case at hand has to be accounted for. In evidence, the present petitioner had appeared as AW-3. In his statement, he had categorically submitted that he had handed over the original Will to the Patwari in October, 2016. The statement of one Patwari Sushil Kumar (AW-4) has been recorded in the case at hand. From a perusal of his statement, it is evident that the concerned Patwari to whom the Will in October 2016 had been handed over, is alive and still in service. The said Patwari to whom the original Will is stated to have been handed over in October, 2016, has not been 4 examined. On account of non-examination, the trial Court has correctly drawn an adverse inference against the present petitioners/defendants. 8. Even otherwise insofar as the conduct of the present petitioners/defendants are concerned, the same is highly negligent as qua a Will which was handed over to the concerned Patwari in October, 2016 for making the necessary mutation, steps for taking back the same were initiated in 2021 only when the counsel for the petitioners/defendants asked for the original Will. Lack of bona fides and lack of diligence on the part of the petitioners/defendants are writ at large. 9. For the aforesaid reasons, I see no reason to differ with the well reasoned impugned judgment dated 2nd December, 2022 passed by the learned trial Court, whereby the application for leading secondary evidence in the case at hand has been dismissed. In view thereof, the present petition being devoid of any merit is dismissed. Parties are directed to appear before the trial Court on 13.10.2025. Pending miscellaneous application, if any, also stand disposed of. (Bipin Chander Negi) Judge September 17, 2025 tarun