Kalla Tahed vs Khelji Vasuniya
2023 Latest Caselaw 16476 MP

                                                              1
                            IN     THE      HIGH COURT OF MADHYA PRADESH
                                                  AT INDORE
                                                     BEFORE
                                     HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
                                                ON THE 6 th OF OCTOBER, 2023
                                               MISC. PETITION No. 2162 of 2022

                           BETWEEN:-
                           KALLA TAHED S/O SHRI VAJI TAHED, AGED ABOUT 52
                           YEAR S , OCCUPATION: AGRICULTURE UDAYPURIYA,
                           TEHSIL AND DISTRICT JHABUA (MADHYA PRADESH)

                                                                                            .....PETITIONER
                           (BY SHRI SHAILENDRA SHRIVASTAVA - ADVOCATE)

                           AND
                           1.    KHELJI VASUNIYA S/O VESHIYA VASUNIYA, AGED
                                 ABOUT 59 YEARS, OCCUPATION: AGRICULTURE
                                 UDAYPURIYA, TEHSIL AND DISTRICT JHABUA
                                 (MADHYA PRADESH)

                           2.    STATE OF M.P. THROUGH COLLECTOR JHABUA
                                 (MADHYA PRADESH)

                                                                                         .....RESPONDENTS
                           (SHRI PADMNABH SAXENA - ADVOCATE FOR THE RESPONDENT NO.1)
                           (MS. BHARTI LAKKAD - GOVERNMENT ADVOCATE FOR THE
                           RESPONDENT NO.2/STATE)

                                 This petition coming on for admission this day, th e court passed the
                           following:
                                                               ORDER

In the instant petition filed under Article 227 of the Constitution of India, the petitioner is challenging the order dated 26.02.2022 passed by First Civil Judge, Class-II, Jhabua (M.P.) in Regular Civil Suit No.60-A/2018 whereby the trial Court has rejected the application under Section 65 of the Evidence Act filed by the petitioner for permission to produce photocopy of the Will dated

Signature Not Verified 12.10.2011 executed by Late Shri Gabji in his favour as secondary evidence. Signed by: VARSHA SINGH Signing time: 07-10-2023 11:28:59

02. The petitioner/plaintiff has filed a suit for declaration of title and permanent injunction against the respondent no.1. He filed an application under section 65 of the Evidence Act stating that the copy of the original Will dated 12.10.2011 is missing and it appears that the same has been lost during the proceedings of regular Court and Commissioner Court. He made efforts to find out it through his advocate in the SDM Court but original could not be find out and therefore, he prays for producing the photocopy of the Will as secondary evidence.

03. Learned counsel for the petitioner submits that the trial Court has erroneously rejecting the said application.

04. Learned counsel for the respondents submits that the petitioner has not stated the essential ingredients of section 65 (c) of the Evidence Act. It is submitted that as per judgment passed by the Apex Court in the case of Kaliya vs. State of M.P. (2013) 10 SCC 758 , the applicant has to establish that he was not in his possession or control of the original document and second he has to establish the existence of the document. He further submits that the photocopy of Will is not admissible in evidence.

05. Upon perusal of the impugned order dated 26.02.2022, this Court finds that the Court has not considered the aforesaid submissions raised by the parties and the order has been passed without considering the same. In view of the aforesaid, the impugned order dated 26.02.2022 rejecting the application under Section 65 of the Evidence Act is set aside and the trial Court is directed to decide the said application afresh without being influenced by the previous impugned order.

With the aforesaid, Misc. Petition is allowed and disposed off. Signature Not Verified Signed by: VARSHA SINGH Signing time: 07-10-2023 11:28:59

Certified copy as per rules.

(VIJAY KUMAR SHUKLA) JUDGE VS

Signature Not Verified Signed by: VARSHA SINGH Signing time: 07-10-2023 11:28:59