The Himachal Pradesh High Court declined to interfere under Article 227 with a trial court's discretionary order allowing a defendant to prove a contested Will through secondary evidence under Section 65 of the Evidence Act. The Court reaffirmed that supervisory jurisdiction cannot substitute appellate review or correct errors not apparent on the record, particularly when the trial court's order is well-reasoned and the opposing party retains the opportunity to cross-examine witnesses at trial.
Background & Facts
The Dispute
The petitioner, Prem Chand, filed a civil suit (Civil Suit No. 185/2018) before the Court of Civil Judge, Indora, District Kangra, seeking a declaration that a Tabniyat Nama/Will registered with the Sub-Registrar, Indora, vide document No. 101 dated 24.08.1990, in favour of the defendant Suresh Kumar, pertaining to the land subject matter of the suit, is null and void, illegal, and not binding upon the plaintiff's rights. The plaintiff claimed to be the Chela (disciple) of Sh. Kanshi Gir @ Mela Ram and, after the latter's demise, had moved an application before the Deputy Commissioner, Kangra at Dharamshala on 15.06.2017, for appointment as Mohtmim (manager) of Shiv Mandir Badukhar, along with the land mentioned in the suit. The defendant contested the suit by filing a written statement, and the trial court framed issues and directed parties to adduce evidence.
Key Facts
- The Will in question was executed on 24.08.1990 and registered as document No. 101 with the Sub-Registrar, Indora.
- The suit land is associated with Shiv Mandir Badukhar, managed by the plaintiff as claimed Mohtmim.
- The plaintiff claimed discipleship of Sh. Kanshi Gir @ Mela Ram and sought appointment as Mohtmim on 15.06.2017.
- The very execution of the Will in favour of the defendant was disputed by the plaintiff.
- During the pendency of the suit, when the case was listed for defendant's witnesses (DWs), the defendant moved an application under Section 65 of the Indian Evidence Act seeking permission to lead secondary evidence to prove the Will dated 24.08.1990.
- The defendant stated that another case was pending before the Hon'ble High Court, Shimla, and the original Will dated 24.08.1990 was attached with that pending case; he had obtained a certified copy and sought to prove it through secondary evidence.
- The plaintiff contested the application raising preliminary objections: the application was not maintainable, the applicant had no locus standi, no cause of action, and the plaintiff was the Mohtmim of Shiv Mandir Badukhar looking after its management after the demise of Sh. Kanshi Gir.
Procedural History
- 24.08.1990: Will executed and registered as document No. 101 with Sub-Registrar, Indora.
- 15.06.2017: Plaintiff moved application before DC Kangra at Dharamshala for appointment as Mohtmim of Shiv Mandir Badukhar.
- Civil Suit No. 185/2018: Filed by plaintiff Prem Chand against defendant Suresh Kumar for declaration that Will is null and void.
- CMA No. 173/2025: Defendant's application under Section 65 Evidence Act for leading secondary evidence to prove the Will.
- 27.10.2025: Learned trial Court (Civil Judge, Indora) allowed the application, granting permission to lead secondary evidence.
- CMPMO No. 20 of 2026: Present petition filed under Article 227 of the Constitution before the High Court of Himachal Pradesh challenging the order dated 27.10.2025.
- 17.08.2026: High Court dismissed the petition.
- 07.09.2026: Parties directed to appear before the learned trial Court at 10:00 am.
Relief Sought
The petitioner sought quashing of the trial court's order dated 27.10.2025 allowing the defendant's application under Section 65 of the Evidence Act to prove the Will dated 24.08.1990 by way of secondary evidence.
The Legal Issue
The central question was whether the High Court, exercising its supervisory jurisdiction under Article 227 of the Constitution, should interfere with a trial court's discretionary order allowing a party to lead secondary evidence under Section 65 of the Indian Evidence Act to prove a Will, where the original document is allegedly attached in another pending proceeding.
Arguments Presented
For the Petitioner
The petitioner contended that the application under Section 65 was not maintainable, the defendant lacked locus standi and cause of action to file it, and the plaintiff was the rightful Mohtmim of Shiv Mandir Badukhar managing the suit land after the demise of Sh. Kanshi Gir. The petitioner further disputed the very execution of the Will in favour of the defendant. Counsel for the petitioner could not, however, demonstrate how the trial court had wrongly exercised its jurisdiction in allowing the application.
For the Respondent
The respondent maintained that the original Will was attached in another case pending before the High Court, making it unavailable for production in the present suit. He had obtained a certified copy and sought the trial court's indulgence to prove the Will through secondary evidence as permitted under Section 65 of the Evidence Act. The application was moved at the appropriate stage when the case was listed for defendant's witnesses.
The Court's Analysis
The High Court examined the scope of its supervisory jurisdiction under Article 227, emphasizing its limited and corrective nature. The Court relied on two recent Supreme Court decisions to delineate the boundaries of this power.
First, in K. Valarmathi & Ors. Versus Kumaresan (2025 INSC 606), the Supreme Court held:
"Essence of the power under Article 227 being supervisory, it cannot be invoked to usurp the original jurisdiction of the court which it seeks to supervise. Nor can it be invoked to supplant a statutory legal remedy under the Civil Procedure Code, 1908. For example, existence of appellate remedy under Section 96 of the Code operates as a near total bar to exercise of supervisory jurisdiction under Article 227."
Second, in Nandi Infrastructure Corridor Enterprises Ltd. & Anr. Versus B. Gurappa Naidu & Ors. (2026 INSC 434), the Supreme Court reiterated:
"a) The power of superintendence under Article 227 is not to be exercised unless there has been an (a) unwarranted assumption of jurisdiction, not vested in Court or tribunal, or (b) gross abuse of jurisdiction or (c) an unjustifiable refusal to exercise jurisdiction vested in Courts or tribunals. b) It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. c) The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal."
Applying these principles, the Court found that the trial court's order allowing the Section 65 application was a discretionary case management decision made when the matter was listed for defendant's witnesses. The order was well-reasoned and did not reflect any unwarranted assumption of jurisdiction, gross abuse, or unjustifiable refusal to exercise jurisdiction. The grounds raised by the plaintiff opposing the application - including locus standi, cause of action, and disputed execution of the Will - were matters to be considered by the trial court at the time of hearing, where the plaintiff would have the opportunity to cross-examine the witnesses through whom the defendant sought to prove the Will. The High Court concluded that no occasion arose for interference under Article 227.
The Verdict
The petitioner's challenge failed. The High Court dismissed the petition (CMPMO No. 20 of 2026) filed under Article 227 against the trial court's order dated 27.10.2025. The Court upheld the trial court's discretionary decision to allow the defendant to lead secondary evidence under Section 65 of the Evidence Act to prove the Will dated 24.08.1990. The observations made were confined to the disposal of the petition and not to be taken as an expression of opinion on the merits of the main suit pending adjudication. The parties were directed to appear before the learned trial Court on 07.09.2026 at 10:00 am, and all pending applications were disposed of.
What This Means For Similar Cases
Supervisory Jurisdiction Is Not A Substitute For Appeal
The judgment reinforces that Article 227 cannot be invoked merely because a party disagrees with a trial court's interlocutory order on evidence. The existence of a statutory appellate remedy under Section 96 CPC operates as a near-total bar to supervisory jurisdiction. Practitioners should advise clients that challenges to discretionary case management orders - such as permission to lead secondary evidence - must await the final decree and appeal, unless the order suffers from a jurisdictional error apparent on the face of the record.
Trial Courts Retain Broad Discretion On Evidence Management
The trial court's decision to allow secondary evidence under Section 65 when the original document is genuinely unavailable (here, attached in another pending High Court case) falls squarely within its discretionary powers. The High Court will not reappreciate the sufficiency of the grounds for secondary evidence at the supervisory stage. The opposing party's remedy lies in cross-examination and final arguments before the trial court, not in a premature Article 227 petition.
Cross-Examination Remains The Primary Safeguard
The Court emphasized that the plaintiff's objections to the Will's execution, the defendant's locus standi, and the maintainability of the application are all matters for trial. The opportunity to cross-examine witnesses through whom the Will is sought to be proved provides adequate procedural protection. Lawyers should focus on building a robust cross-examination strategy rather than seeking premature High Court intervention on evidentiary rulings.
