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When can a party lead secondary evidence under Section 65 of the Indian Evidence Act? Supreme Court explains

Shruti Mahajan

For secondary evidence as regards a document to be adduced, foundational evidence has to be given regarding why the original document, or the primary evidence, is not produced, the Supreme Court reiterated on Wednesday.

On a reading of Section 65 of the Indian Evidence Act, the Supreme Court Bench of Justices Navin Sinha and Krishna Murari held that it is clear that secondary evidence as regards a document can be given when, for some reason, the primary evidence or original document cannot be produced before the Court. The reason for such a non-production, however, must be established.

For secondary evidence to be adduced, thus, foundational evidence has to be given as regards the reasons why the original evidence cannot be furnished. The Court, in its judgment, has said,

"A perusal of Section 65 makes it clear that secondary evidence may be given with regard to existence, condition or the contents of a document when the original is shown or appears to be in possession or power against whom the document is sought to be produced, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after notice mentioned in Section 66 such person does not produce it. (sic)"

Ordinarily, facts have to be established by way of primary evidence according to the provisions of the Indian Evidence Act of 1872, the Court observed. Secondary evidence is only an exception to this rule. For Secondary evidence to be furnished, the existence of original document ought to be shown.

The Courts may not allow a party to adduce secondary evidence if no plausible reason is given for the non-production of the original documents. If the party seeking to lead secondary evidence does not establish the "factual foundation" i.e. evidence that that the original document exists, the Court may disallow leading of secondary evidence. The Court cited its decision in the case of H. Siddiqui (dead) by LRs Vs. A. Ramalingam where this principle was reiterated.

The instant judgment of the Supreme Court came in an appeal against the decision of the Punjab & Haryana High Court, which had dismissed a revision petition moved against the decision of a Trial Court.

In the instant case the plaintiffs in a suit had moved an application before the trial Court under Sections 65 and 66 of the Indian Evidence Act seeking permission to lead secondary evidence in relation to a Will that was executed in their favour. The original copy of the Will had been submitted to the local Patwari for facilitating mutation entry for the subject matter of the Will and the same could not be retrieved on account of a long duration of time being elapsed.

The application was dismissed by the Trial Court and a revision plea filed against the dismissal was also disallowed by the High on the grounds that the pre-requisite condition, that is establishing the existence of the Will, was not done. Therefore, secondary evidence could not be adduced, the High Court said.

The Supreme Court, however, departed from the reasoning of the High Court, observing that on the examination of a scribe, the existence of the Will and the difficulty in tracing the same was established. Therefore, the Supreme Court held that the High Court committed an error in law by not allowing the party to adduce secondary evidence.

The Court, thus, found the decision of the High Court unsustainable and set aside the same. The Court held,

"The appellants would be entitled to lead secondary evidence in respect of the Will in question. It is, however, clarified that such admission of secondary evidence automatically does not attest to its authenticity, truthfulness or genuineness which will have to be established during the course of trial in accordance with law."

Read Judgment:

Jagmail Singh vs Karamjit Singh.pdf
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