Case Note & Summary
The petitioners, original plaintiffs in Special Civil Suit No.126/2006, challenged the order dated 20th July 2015 passed by the Joint Civil Judge, Senior Division, Nagpur, allowing the respondents' application for adducing secondary evidence of a Will dated 6.11.1997, and the subsequent order dated 2nd September 2015 refusing to review that order. The suit was filed by the petitioners seeking declaration and permanent and mandatory injunction. The respondents (defendants) filed a written statement and counterclaim seeking 1/4th share in the suit property. During the trial, after the petitioners had closed their evidence, the respondents filed an application under Section 65 of the Indian Evidence Act, 1872 to lead secondary evidence of the Will, claiming that the original was lost. The trial court allowed the application, holding that the respondents had made sufficient efforts to produce the original and that the Will was relevant. The petitioners sought review, which was rejected. The High Court, in this writ petition, examined whether the trial court's discretion was exercised properly. The court noted that the respondents had pleaded the loss of the original Will and had examined a witness to prove the loss. The trial court, after considering the material, found that the conditions for leading secondary evidence were satisfied. The High Court held that the trial court's order was not perverse or illegal and did not warrant interference under Article 227 of the Constitution. Regarding the review order, the court observed that the grounds raised by the petitioners did not disclose any error apparent on the face of the record, and the review was rightly refused. The writ petition was dismissed.
Headnote
A) Evidence Act - Secondary Evidence - Will - Section 65 Indian Evidence Act, 1872 - The trial court allowed an application under Section 65 to adduce secondary evidence of a Will dated 6.11.1997, holding that the original Will was lost and the party had made sufficient efforts to produce it. The High Court upheld the order, finding no error in the exercise of discretion. (Paras 1-10)
B) Civil Procedure Code - Review - Order 47 Rule 1 - The trial court refused to review its earlier order allowing secondary evidence, as the grounds raised did not constitute an error apparent on the face of the record. The High Court affirmed this, noting that review is not an appeal in disguise. (Paras 11-14)
Issue of Consideration
Whether the trial court was justified in allowing the application for adducing secondary evidence of a Will dated 6.11.1997 and whether the subsequent order refusing review of that order was correct.
Final Decision
The High Court dismissed the writ petition, upholding the trial court's order allowing secondary evidence of the Will dated 6.11.1997 and the order refusing review.
Law Points
- Secondary evidence
- Will
- Section 65 Indian Evidence Act
- 1872
- Section 63 Indian Succession Act
- 1925
- Civil Procedure Code
- 1908
- Order 18 Rule 17A
- Review
- Order 47 Rule 1
Case Details
2016 LawText (BOM) (09) 129
Writ Petition No.5984 of 2015
Shri S.V. Bhutada for Petitioners, Shri S.P. Dharmadhikari, Senior Advocate along with Shri A.G. Gharote and Shri A.M. Deshpande for Respondent Nos.1 to 3
Smt. Sumati @ Asha w/o. Late Anil Subhedar, Deodatta s/o. Late Anil Subhedar, Nishikant s/o. Late Kashinath Subhedar
Yashodhara w/o. Late Sunil Subhedar, Rutvik s/o. Late Sunil Subhedar, Smt. Gayatri w/o. Amit Pande, Subhash s/o. Late Kashinath Subhedar, Satish s/o. Sudarshan Lade, Smt. Pratibha w/o. Satish Lade
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Nature of Litigation
Civil writ petition challenging trial court orders allowing secondary evidence of a Will and refusing review.
Remedy Sought
Petitioners sought to quash the order dated 20th July 2015 allowing secondary evidence and the order dated 2nd September 2015 refusing review.
Filing Reason
Petitioners challenged the trial court's decision to allow the respondents to adduce secondary evidence of a Will dated 6.11.1997, claiming it was not permissible.
Previous Decisions
The trial court allowed the application for secondary evidence on 20th July 2015 and refused review on 2nd September 2015.
Issues
Whether the trial court's order allowing secondary evidence of the Will was legal and proper.
Whether the trial court's refusal to review its order was justified.
Submissions/Arguments
Petitioners argued that the respondents failed to prove the loss of the original Will and that the application for secondary evidence was belated.
Respondents contended that the original Will was lost and they had made sufficient efforts to produce it, and the trial court's discretion should not be interfered with.
Ratio Decidendi
The trial court's discretion to allow secondary evidence under Section 65 of the Indian Evidence Act, 1872, when exercised after considering the material on record, cannot be interfered with under Article 227 unless it is perverse or illegal. The refusal to review was also correct as no error apparent on the face of the record was shown.
Judgment Excerpts
By this petition, the petitioners-original plaintiffs have challenged the legality and correctness of the order dated 20th July, 2015 passed by the Joint Civil Judge, Senior Division, Nagpur, below Exh.209 in Special Civil Suit No.126/2006 thereby allowing the application for adducing the secondary evidence in respect of Will dated 6.11.1997 and also the order passed by the same Court on 2nd September, 2015 refusing to review the order dated 20th July, 2015.
Procedural History
The petitioners filed Special Civil Suit No.126/2006 seeking declaration and injunction. Respondents filed written statement and counterclaim. After petitioners closed evidence, respondents filed application for secondary evidence of Will dated 6.11.1997. Trial court allowed it on 20.7.2015. Petitioners sought review, which was refused on 2.9.2015. Petitioners then filed this writ petition.
Acts & Sections
- Indian Evidence Act, 1872: Section 65
- Indian Succession Act, 1925: Section 63
- Code of Civil Procedure, 1908: Order 18 Rule 17A, Order 47 Rule 1
