Rajiv Narain Raina, J. - (1.) THE defendants are the petitioners before this Court. Their application for permission to lead secondary evidence on the Will dated 12.04.1999 has been declined by the trial Court. They claim that the provisions of Section 65 of the Indian Evidence Act, 1872 (for short 'the Act') set out a procedure for leading secondary evidence on one the happening of one of the events ascribed for loss of the primary evidence.
(2.) WHAT is asserted is a right to lead evidence on the secondary evidence. In the present case, such a situation arises out of a plea taken by the defendants with respect to the original Will dated 12.04.1999 which is stated to have been weeded out from the record maintained by the Assistant Collector Ist Grade, Amritsar in terms of instructions of Punjab Government issued for weeding out record on lapse of prescribed time by order. Therefore, the need to lead secondary evidence of the primary evidence. Brother K. Kannan, J has considered this procedural issue in CR No. 4889 of 2013, decided on August 16, 2013 in the context of section 65 of the Act. The following opinion has been expressed in the order: - 1. The application for reception of secondary evidence has been dismissed and therefore the petitioner is before this Court. This Court has set out a procedure to be followed when secondary evidence is sought to be given. There is not even a necessity of filing such an application. If a party gives any of the grounds set out under Section 65 of the Indian Evidence Act for non -production of the original and seeks for production of secondary evidence the Court shall receive the same and allow for the statement made by the witness to be cross examined. If it is elicited in the cross examination that there was no justification for production of secondary evidence the Court shall consider the same at the time arguments when the case comes to conclusion. It shall not be prejudged. This issue has been considered by this Court in Atma Nand (deceased) through LR Vs. Ram Sarup (deceased) through his L.Rs. reported in, 2012 (1) PLR 440; Dr. S.P. Arora Vs. Satbir Singh,, 2010 (5) RCR (Civil) 350 and Simar Pal Singh Vs. Hakam Singh, : 2009 (2) PLR 562. 2. The impugned order is set aside. The civil revision is allowed dispensing with notice to the respondents, for, it is an issue of procedure which has been laid down through law already. There cannot be repeated breach of directions given by this Court, by the Courts below. I see no reason why the dicta of judgments noticed in the above order should not be applied to the case in hand and the petitioner to be permitted to act accordingly.
(3.) THEREFORE , the petition is accepted. The impugned order is set aside. The defendants are permitted leave to follow the procedure inherent in section 65 of the Act for leading evidence on the secondary evidence as they might wish in defense of the suit in accordance with law. Petition stands disposed of as above.;