( 2026:HHC:13549-DB ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 213 of 2022 Decided on : 21.04.2026 Pyare Lal ...Petitioner. Versus Chokas Ram & others ...Respondents. Coram Hon'ble Mr. Justice Romesh Verma, Judge. Whether approved for reporting?1 For the petitioner: Mr. Tara Singh Chauhan, Senior Advocate with Mr. Surya Chauhan, Advocate. For the respondents: Mr. Sanjeev Sharma, Advocate. __________________________________________________ Romesh Verma , Judge (oral) The present petition arises out of the impugned order dated 27.01.2022, passed by learned Senior Civil Judge, Una, District Una, H.P. in CMA No. 274-VI-2019, titled Chokas Ram & others vs. Kishori Lal, whereby application filed under Section 65 of Indian Evidence Act, 1872 has been dismissed. 2. The brief facts of the case are that the present respondent/plaintiff had filed a suit for declaration to the effect that the parties are joint owner in possession in equal 1 Whether reporters of Local Papers may be allowed to see the judgment? 2  ( 2026:HHC:13549-DB ) shares of the property, which they have succeeded from their mother Smt. Surasti Devi wife of late Sh. Seetu @ Saitu, who died intestate on 05.02.2014. It was further averred that the Will dated 03.06.1996, as set up by the defendant alleged to have been executed by Smt. Surasti Devi is illegal, wrong void and result of fraud and misrepresentation and it has got no effect on the rights of plaintiff to succeed the properties of their mother by way of natural succession. 3. The suit was contested by defendants/petitioners by raising various preliminary objections with respect to the maintainability, locus standi, concealment of facts and enforceablity etc. 4. On merits, it was averred that the defendant and his family members lookafter and maintained the deceased Smt. Surasti Devi before 1995 and she was living with them as one of the family members of the defendants. The mother of defendant Smt. Surasti Devi executed a valid Will dated 03.06.1996 in favour of the defendant on account of her own free will and wish and in sound state of mind in lieu of the services as rendered by the defendant and his family 3  ( 2026:HHC:13549-DB ) members. Further, the mutation on the basis of said Will was also sanctioned in favour of the defendant and the said attestation was done in presence of the plaintiffs. Therefore, all the averments as made in the plaint were refuted and denied. 5. The defendant/ petitioner filed the written statement on 03.02.2015. Thereafter, the learned trial Court framed issues and called the respective parties to adduce evidence in support of their contentions. 6. The plaintiff led evidence and after the closer of the same the defendants also led evidence in support of their contentions. 7. On 07.06.2019, an application under Section 65 of the Indian Evidence Act read with Section 151 CPC was filed by the defendant to prove the Will dated 03.06.1996 executed by Smt. Surasti Devi, W/O Seetu by leading secondary evidence as the original Will has been lost and not traceable. 8. In the application, it was averred by the defendant that the applicant/defendant had placed on record a photocopy of the Will dated 03.06.1994 of Smt. Surasti 4  ( 2026:HHC:13549-DB ) Devi, with the hope that the original Will would be traced. However, at the time of leading the defendant’s evidence, the original could not be found, and the Court recorded the statements of DWs No. 1 to 3 on the basis of the photocopy of the aforesaid Will dated 03.06.1996. 9. It was further averred in the application that the applicant traced the aforesaid last Will dated 03.06.1996 in the month of October. Thereafter, he applied for a certified copy of the same in October 2017, and upon receiving it, the present application was promptly filed for leading secondary evidence. 10. The said application was duly contested by the present respondent/plaintiff on the ground of maintainability of the application filed under Section 65 of the Indian Evidence Act. It was averred in the reply that the applicant/defendant had already examined three witnesses qua the execution of the alleged Will, and the said witnesses were duly cross-examined by the plaintiff. The defendant had already availed the opportunity to produce witnesses, and the matter has been pending since 31.05.2017 for the defendant’s evidence. 5  ( 2026:HHC:13549-DB ) 11. It was further contended that the witnesses already examined cannot be recalled, as they have already been cross-examined by the plaintiffs. Therefore, the plaintiffs prayed for dismissal of the aforesaid application. 12. The learned Senior Civil Judge, Una, District Una, H.P. vide its order dated 27.01.2022 dismissed the application filed by the present petitioner. 13. Feeling dissatisfied, the petitioner/defendant has approached this Court by filing instant petition under Article 227 of the Constitution of India. 14. I have heard learned counsel for the parties and gone through the case file. 15. It is contended by Mr. Tara Singh Chauhan, learned Senior Counsel, assisted by Sh. Surya Chauhan, Advocate for the petitioner/defendant that the impugned order is erroneous and liable to quashed and set-aside. He further submits that the rejection of the application by the learned trial Court is not sustainable in the eyes of law. Therefore, after allowing the present petition, the application filed by the present petitioner before learned Trial Court 6  ( 2026:HHC:13549-DB ) under Section 65 of the Indian Evidence Act, is required to be allowed. 16. On the other hand, Mr. Sharma, learned counsel for the defendant has defended the impugned order. He submits that there is no jurisdictional error by the learned trial Court and learned court below has rightly passed the order which does not call for any interference, specifically, in view of the provisions of Article 227 of the Constitution of India and the law as laid down by the Hon’ble Apex Court. He has prayed for the dismissal of the instant petition. 17. In the present case, the petitioner/defendant has approached this Court by invoking the provisions of Section 65 (c) of Indian Evidence Act, which reads as follows: “65 (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” 18. It is the case of the defendant that at the time of filing the written statement, a photocopy of the Will dated 03.06.1996 was placed on record. He subsequently applied for a certified copy of the said Will in the month of November 7  ( 2026:HHC:13549-DB ) 2017, and immediately thereafter, the present application was filed. 19. The record reveals that along with the written statement, the petitioner filed a photocopy of the Will dated 03.06.1996. Issues in the case were framed on 21.09.2015, and after the conclusion of the plaintiff’s evidence, the defendant also examined three witnesses, namely, Sh. Sansar Chand as DW-1, Sh. Krishan Chand as DW-2, and Sh. Ravi Kumar as DW-3. 20. Prior to the examination of the said witnesses no application was filed by the present petitioner. 21. The suit was filed by the plaintiff in 2014, and the present application has been filed in 2019, after a lapse of more than five years. The case file reveals that the stand taken by the present petitioner is that, along with the written statement, he had placed on record a photocopy of the Will with the hope that the original Will would be traced. He applied for the same in 2017, and thereafter, the present application was filed immediately. 8  ( 2026:HHC:13549-DB ) 22. The sum and substance of the said submission is that the original Will of the defendant was lost prior to the filing of the written statement. 23. On the contrary, when the statement of AW-1, placed on record as Ext. AW-1/A, is perused, it is evident from the cross-examination that the original Will was in his possession at the time of filing of the written statement. This is contrary to the averments made in the present application. On the one hand, in the present application, a stand has been taken that he applied for a certified copy only in the year 2017, however, upon entering the witness box as AW- 1, he categorically admitted that the original Will was in his possession. 24. The said contradiction falsifies the case of the present petitioner/defendant and shows that the stand being adopted by him is not correct. 25. The learned trial Court has rightly come to the conclusion that, on the one hand, a stand has been taken by the defendant/petitioner that he applied for a certified copy of the Will in 2017 and thereafter filed the present application. However, the attested copy of the Will placed on 9  ( 2026:HHC:13549-DB ) record was attested on 18.03.2014. Furthermore, in his cross-examination, he admitted that the certified copy of the Will had been given to his advocate in 2014.This also puts a question mark on the stand adopted by the petitioner/defendant. 26. This Court in CMPMO No. 535 of 2025, titled Charan Dass vs. Preeto Devi & others, decided on 24.03.2026, while dealing with the provisions of Section 65 of the Indian Evidence Act has held under what circumstances the provision of Section 65 of the Indian Evidence Act has to be governed. The relevant paras of the same are reads under: 27. The Hon’ble Apex Court in Civil Appeal No. 4910 of 2023, titled Vijay vs. Union of India and others (2023) 17 SCC 455 held as under:- “32. Section 63 of the Evidence Act gives an exhaustive definition declaring that secondary evidence "means and includes" the five kinds of evidence mentioned therein. Section 65 of the Evidence Act allows secondary evidence to be given of the existence, condition, or contents of documents under the circumstances therein mentioned. It provides for the circumstances in which secondary evidence can be used when the original document is unavailable or inaccessible. It is imperative to adhere to the principles outlined in these sections, including the proper 10  ( 2026:HHC:13549-DB ) documentation and authentication, to successfully produce secondary evidence in legal proceedings. 36. We may now consider Section 35 of the Stamp Act which forbids the letting of secondary evidence in proof of its contents. The section excludes both the original instrument and secondary evidence of its contents if it needs to be stamped or sufficiently stamped. This bar as to the admissibility of documents is absolute. Where a document cannot be received in evidence on the ground that it is not duly stamped, the secondary evidence thereof is equally inadmissible in evidence.” 28. A Co-ordinate Bench of this Court in CMPMO No. 235 of 2018, titled Sh. Amar Nath vs. Sh. Bhagat Chand, 2019 (2) SLC 972 held as under:- “4. Relying upon the judgments rendered by the Hon’ble Supreme Court in cases of J. Yashoda Vs. K. Shobha Rani, (2007) 5 Supreme Court Cases, 730, M.Chandra Vs. M. Thangamuthu, (2010) 9 Supreme Court Cases 712, H. Siddiqui Vs. A. Ramalingam (2011) 4 Supreme Court Cases 240 & U. Sree Vs. U. Srinivas, (2013) 2 Supreme Court Cases 114, it can be concluded that secondary evidence in respect of an ordinary document can be allowed in case following requirements inter-alia amongst others are met :- i) For leading secondary evidence, non production of the document in question has to be properly accounted for by giving cogent reasons inspiring confidence. ii) The party should be genuinely unable to produce the original of the document and it should satisfy the Court that it has done whatever was required at its end. It 11  ( 2026:HHC:13549-DB ) cannot for any other reason, not arising from its own default or neglect produce it. iii) Party has proved before the Court that document was not in his possession and control, further that he has done, what could be done to procure the production of it. iv) The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. 5. The record of the case clearly indicates that in the written statement, even the date of the agreement is not mentioned. The written statement was filed on 18.06.2012. The matter was fixed for defendant’s witnesses w.e.f. 22.11.2014. The application for leading secondary evidence was moved on 10.07.2017, five years after the filing of written statement. The reason for delay advanced by the petitioner/defendant that he came to know about the existence of only photocopy of the agreement in the court file, at the time of examination of defendant’s witnesses, does not inspire confidence. From 22.11.2014, the matter was fixed for defendant’s witnesses. The record of learned Court below demonstrates that statements of DW No.1, DW No.2,DW 7 No.3 had already been recorded on 20.12.2016. There is no reason forthcoming in the application, which sufficiently and cogently explains the delay in moving the application. 6. The requirements laid down under Sections 63 and 65 of the Indian Evidence Act for permission to lead secondary evidence are not met in the instant case. There is no averment made in the application that the photocopy of the agreement on the record is made from the original, when it was made and who compared it. The loss of the original 12  ( 2026:HHC:13549-DB ) agreement has not been accounted for in accordance with the provisions of Section 65 of the Indian Evidence Act. The application is bereft of the particulars, which are required for discharging the proof, required under Section 65 of the Indian Evidence Act. 7. Merely, a vague averment made in the application that the document has not been traced, is not sufficient to allow the application for leading secondary evidence. Therefore, no illegality can be found in the order passed by the learned Trial Court.” 29. A Co-ordinate Bench of this Court in CMPMO No. 322 of 2017, titled Sh. Raj Kumar and another vs. Sh. Milap Chand 2025 (2) HLJ 929 held as under:- “7. Coming back to the facts of the present case, a perusal of the application filed by the petitioners under Section 65 of the Indian Evidence Act demonstrates that the prayer therein was that the petitioners/plaintiffs may be allowed to lead secondary evidence by placing on record a Photostat copy of the agreement executed between the plaintiffs and the defendant dated 07.09.1992. It was averred in the application, which is appended with the petition as Annexure P-5 that at the time of the execution of agreement between the plaintiffs and the defendant on 07.09.1992, in respect of the sale of the suit land vis-à-vis which the suit for specific performance was filed by the plaintiffs, one photocopy of the agreement was made from the judicial paper i.e., carbon copy of the agreement as well as from the stamp paper copy. The photocopies were prepared for the petitioners and non-applicant was in possession of the original copy of agreement. The original copy of agreement dated 07.09.1992 was handed over to the defendant in the presence of the witnesses. 13  ( 2026:HHC:13549-DB ) Subsequently, defendant manipulated and with an intention to defraud the plaintiffs, he took possession of the carbon copy of the agreement by handing over the photocopy of the agreement to the plaintiffs. It was in this backdrop, that a prayer was made to lead additional evidence. 8. Thus, it is evident from the averments made in the application itself that the payer therein was to place a photocopy of the carbon copy on record and, as nothing was on record to suggest that the ‘Copy’ of which Mark-AX itself was a photocopy was compared with the original document at any time, therefore, no perversity can be attributed to the order under challenge and the learned Court below rightly dismissed the application. Learned Court rightly held that in the given circumstances, permission as was being prayed by the petitioners to lead secondary evidence, could not have been granted, as grant of permission would have been in violation of the permission of Section 65 of the Evidence Act.” 30. The learned Trial Court has passed a well reasoned order and there is no jurisdictional error committed by the said Court. The Court has passed a detailed order after examining and perusing the record and this Court is of the opinion that there is no infirmity in the said order. 31. The Hon’ble Apex Court in M/S GARMENT CRAFT Vs. PRAKASH CHAND GOEL, (2022) 4 SCC 181, decided on 11.01.2024, has held that High Court while exercising Supervisory Jurisdiction under Article 227 of the 14  ( 2026:HHC:13549-DB ) Constitutional of India will not act as a Court of First Appeal to reappreciate, reweigh the evidence on facts upon which the determination under challenge is based. The Hon’ble Supreme Court has held as follows:- 15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal.1 The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse,1Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice. 16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd.2 has observed:- “6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The 15  ( 2026:HHC:13549-DB ) exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to.” 32. Consequently, the present petition being devoid of any merit is dismissed. 33. It is made clear that observations made while adjudicating the present petition shall have no bearing on the merits of the case. 16  ( 2026:HHC:13549-DB ) 34. All pending miscellaneous application(s), if any, shall also stand disposed off, accordingly. (Romesh Verma) Judge April 21, 2026 (Nisha)