Krishan Kumar vs Pal Singh

D.V. Sehgal, J.—This revision petition is directed against the order dated 7-5-1988 passed by the learned Rent Controller, Ludhiana. The Respondent has been allowed to lead secondary evidence of a Will dated 15-9-1981.

The learned Counsel for the Petitioner submits that the Rent Controller has wrongly held that the existence of the Will in dispute has been proved by production of its photostat copy by the Respondent on the file. It could not be disputed by the learned Counsel for the Respondent that this assumption was not based on any cogent evidence on the record.

Section 65 of the Evidence Act, 1872 lays down inter-alia, that secondary evidence of the existence, condition or contents of a document can be given when the existence, condition or contents of the original have been proved. It was, therefore, incumbent on the Respondent to lead evidence to prove the existence of the original Will The learned Counsel for the Respondent concedes that the order under revision could not be passed without evidence to that effect had been led.

I, therefore, allow this revision without any order as to costs, set aside the order dated 7-5-1988 passed by the learned trial Court. It is, however, made clear that it shall be open to the Respondent to lead evidence to prove the existence of the original Will and the trial Court shall afford him an opportunity to do so. It is only if the existence of the original Will is proved" that the learned trial Court shall allow the Respondent to lead secondary evidence of the said Will.

The parties through their counsel are directed to appear before the learned trial Court on October 4, 1988.