Case Note & Summary
The petitioner, Rajendra @ Deendhar, filed a writ petition under Articles 226 and 227 of the Constitution of India challenging an order dated 21.09.2011 passed by the II Addl. Civil Judge (Sr.Dn.), Bijapur in O.S.No.110/2004. The impugned order allowed I.A.No.10 filed under Section 65 of the Evidence Act, 1872 by the first respondent, Smt. Ningawwa, who is the plaintiff in the suit. The suit was filed seeking a declaration that a Will dated 13.11.1986 of Bhimappa is not genuine and for partition by metes and bounds of the suit property. The plaintiff claimed that the original Will was lost and sought permission to lead secondary evidence. The trial court allowed the application, which the petitioner challenged. The High Court, after hearing the parties, dismissed the writ petition, holding that the order allowing secondary evidence is an interlocutory order and does not finally decide the rights of the parties. The court observed that the trial court had exercised its discretion properly and that there was no ground to interfere under writ jurisdiction. The court also noted that the petitioner would have the opportunity to cross-examine the witnesses and challenge the secondary evidence during the trial.
Headnote
A) Evidence Act - Secondary Evidence - Section 65 - Lost Document - The trial court allowed an application under Section 65 of the Evidence Act, 1872 to permit the plaintiff to lead secondary evidence of a Will dated 13.11.1986, on the ground that the original was lost. The High Court held that the trial court's discretion to allow secondary evidence when the original is lost cannot be interfered with under writ jurisdiction, as the order is interlocutory and does not decide the rights of parties finally. (Paras 1-5)
B) Civil Procedure Code - Interlocutory Order - Writ Jurisdiction - Articles 226 and 227 of Constitution of India - The High Court held that an order allowing secondary evidence is an interlocutory order and does not warrant interference under Articles 226 and 227 of the Constitution of India, as it does not finally adjudicate the rights of the parties. (Paras 4-5)
Issue of Consideration
Whether the trial court was justified in allowing the application under Section 65 of the Evidence Act, 1872 to lead secondary evidence of a Will when the original was allegedly lost.
Final Decision
The High Court dismissed the writ petition, upholding the trial court's order allowing secondary evidence under Section 65 of Evidence Act.
Law Points
- Secondary evidence
- Section 65 Evidence Act
- 1872
- Lost document
- Civil Procedure Code
- Order 18 Rule 17
- Writ jurisdiction
- Articles 226 and 227 Constitution of India
Case Details
2017 LawText (KAR) (08) 7
Writ Petition No. 84322/2011 (GM-CPC)
Sri. Umesh V. Mamadapur (for petitioner), Sri D.P. Ambekar & Sri. V.M. Biradar (for R-1), Sri Ashok S. Kinagi (for R-4)
Smt. Ningawwa W/o Dodappa Manganur @ Mangannawar and others
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Nature of Litigation
Writ petition under Articles 226 and 227 of Constitution of India challenging an interlocutory order allowing secondary evidence under Section 65 of Evidence Act in a civil suit for declaration and partition.
Remedy Sought
Petitioner sought a writ of certiorari to quash the order dated 21.09.2011 allowing I.A.No.10 under Section 65 of Evidence Act in O.S.No.110/2004.
Filing Reason
Petitioner challenged the trial court's order allowing the plaintiff to lead secondary evidence of a Will on the ground that the original was lost.
Previous Decisions
The trial court allowed I.A.No.10 filed under Section 65 of Evidence Act on 21.09.2011.
Issues
Whether the trial court was justified in allowing the application under Section 65 of the Evidence Act, 1872 to lead secondary evidence of a Will when the original was allegedly lost.
Submissions/Arguments
Petitioner argued that the trial court erred in allowing secondary evidence without proper proof of loss of original Will.
Respondent supported the trial court's order, contending that the original Will was lost and secondary evidence was permissible under Section 65 of Evidence Act.
Ratio Decidendi
An order allowing secondary evidence under Section 65 of Evidence Act is an interlocutory order that does not finally decide the rights of parties, and therefore, no interference is warranted under Articles 226 and 227 of Constitution of India. The trial court's discretion to allow secondary evidence when the original is lost cannot be interfered with in writ jurisdiction.
Judgment Excerpts
The petitioner has challenged the order dated 21.9.2011 passed on I.A.No.10 in O.S.No.110/2004, on the file of II Addl. Civil Judge (Sr.Dn.), Vijayapura (Annexure-E to the writ petition).
The order impugned is an interlocutory order and does not decide the rights of the parties finally. Hence, no interference is called for under Articles 226 and 227 of the Constitution of India.
Procedural History
The first respondent filed O.S.No.110/2004 seeking declaration that a Will dated 13.11.1986 is not genuine and for partition. During the suit, the plaintiff filed I.A.No.10 under Section 65 of Evidence Act to lead secondary evidence of the Will, claiming the original was lost. The trial court allowed the application on 21.09.2011. The petitioner challenged this order by filing Writ Petition No. 84322/2011 under Articles 226 and 227 of Constitution of India. The High Court dismissed the writ petition on 28.08.2017.
Acts & Sections
- Indian Evidence Act, 1872: Section 65
- Constitution of India: Articles 226, 227
