Mohinder Pal Singh vs Surjit Singh

R.S. Mongia, J.—Before the Lower Appellate Court the defendants (respondents herein) were allowed to amend the written statement and consequently, the plaintiff (petitioner herein) was allowed to file replication. Certain issues were framed on the basis of the amended written statement and replication. Additional issue No. 2 was framed as under:-

"Whether Harcharan Singh has executed a Will dated 18.5.1987 in favour of Mohinder Pal Singh, and Gurmej Singh. If so its effect? OPP"

The case was remanded to the trial Court asking for the report on the additional issues after recording evidence. The petitioner, who was a co-plaintiff with his father in the suit (the father died during the pendency of the suit), moved an application before the trial Court for leading secondary evidence to prove the alleged Will in his favour. The application was rejected on the ground that it has not been pleaded in the plaint or the replication that the alleged Will executed by plaintiff Harcharan Singh in favour of the present plaintiff had been damaged or destroyed in floods.

Learned counsel for the petitioner has argued that in the pleadings, it is not necessary to allege that a particular document or Will had been destroyed and the same shall be proved by way of secondary evidence. It is enough to allege in the pleadings that there is a Will or document in favour of a particular party and only when the question of its proof comes before the Court, then an application has to be moved and a case has to be made out for leading secondary evidence. He, however, argued that the trial Court had erred in rejecting the application on the ground mentioned above.

Learned counsel for the respondents, however, argued that it was necessary for the petitioner to plead in the plaint or at least in the replication that the alleged Will had been lost in the floods.

After hearing learned counsel for the parties, I am of the considered view that there is force in the contention of counsel for the plaintiff. The pleadings regarding the loss of a document and for purpose of making out of a case for leading secondary evidence had to be made in an application for that purpose. It is for the Court after recording evidence etc., if necessary, to come to a finding whether a case for leading secondary evidence had been made out with regard to a document or a Will. Such an application cannot be rejected solely on the ground that the factum of the loss or damage of the document or Will had not been made in the plaint or in the replication.

For the foregoing reasons, I allow this revision petition and set aside the order dated September 19, 1994 and remand the case to the trial Court for fresh decision on the application for leading secondary evidence in accordance with law keeping in view the above observations.

The parties through their counsel are directed to appear before the trial Court on January 4,1995.