IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CMPMO No. 114 of 2017 Decided on: 02.06.2025 ____________________________________________________ Ranjit Singh and others ……….. petitioners Versus Naresh Kumar and others ……….respondents ____________________________________________________ Coram: Hon'ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting? 1 For the petitioner : Mr. N.K. Thakur, Sr. Advocate, with Mr. Divya Raj Singh and Ms. Ritu Singh, Advocates. For the respondents : Ms. Seema Guleria, Advocate, for respondents No.1 & 2. Respondents No. 3 to 5 proceeded against ex parte. ____________________________________________________ Bipin Chander Negi, Judge (oral) The present petition has been preferred against the impugned order dated 16.3.2017 passed by learned Senior Civil Judge, Una, District Una, H.P. In CMA No. 130-VI-2015 in Civil Suit No. 21/14/04 titled as Jagir Singh (deceased) through LRs vs. Naresh Kumar and others, whereby an application filed under Section 65 of the Indian Evidence Act, 1872 by the present respondents/defendants before the trial Court for leading secondary evidence, has been allowed. 2. Heard counsel for the parties, perused the pleadings and documents appended with the petition. 1 Whether the reporters of the local papers may be allowed to see the judgment? 2 3. The Will executed by Smt. Malika Devi in favour of respondent No.1 is dated 3.5.1991, on the basis of which, a mutation bearing No. 2523 has been attested on 29.10.1991 by the concerned Revenue Authority. The claim of the respondents in the application for leading secondary evidence qua the aforesaid Will dated 3.5.1991 being that for attestation of mutation, the Will had been produced before the Revenue Authority, however, the same was never returned by the concerned revenue agency. The present petitioners/plaintiffs have opposed the present application. Respondents No. 3 to 7 and LRs of respondents No. 8 & 9 vide order dated 6.5.2015 before the trial Court had categorically stated that there is no dispute to contest the present application. 4. The application in the case at hand for leading secondary evidence by the present respondents/defendants was filed at the time of recording of evidence of the respondents/defendants. The relevant portion of Section 65 is being reproduced here-in-below for a ready reference:- 65. Cases in which secondary evidence relating to documents may be given- Secondary evidence may be given of the existence, condition, or contents or a document in the following cases:- 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; 3 5. From a bare perusal of the aforesaid provision, it is evident that sine qua non for permitting secondary evidence is destruction/loss of the document qua which secondary evidence is sought to be led. From a perusal of the impugned order specifically paras 9 & 10, it is evident that while allowing the application for leading secondary evidence, the trial Court has made it subject to the condition that respondent No.1 shall lead evidence in order to show loss/destruction of the Will in the case at hand. In this respect, it would be appropriate to refer to 2016(16) 483 title as Rakesh Mohindra vs. Anita Beri and others. Relevant extract whereof is being reproduced here-in-below:- “The preconditions for leading secondary evidence are that such original documents could not be produced by the party relying upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the non-production of primary evidence. Unless, it is established that the original document is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot be accepted.” 6. In view of the aforesaid circumstances insofar as the impugned order directs the respondent to first establish loss /destruction of the Will by leading evidence, I see no infirmity in the impugned order passed by the learned Trial Court dated 16.03.2017, therefore, the present petition is dismissed. Pending miscellaneous applications. 4 Parties are directed to appear before the trial court on 16.06.2025. (Bipin Chander Negi) Judge June 02, 2025 tarun