Supreme Court Explains Reasons To Lead Secondary Evidence In Absence Of Primary Evidence

The Supreme Court of India, on Wednesday has said it is a settled position of law that for secondary evidence to be admitted foundational evidence has to be given being the reasons as to why the original Evidence has not been furnished.

The Supreme Court held, the factual foundation to establish the right to give secondary evidence was laid down by the appellants in the present case and thus the High Court ought to have given them an opportunity to lead secondary evidence.

The Supreme Court decision came on an appeal filed challenging the Punjab and Haryana High Court order which had upheld the orders passed by the Trial Court which had rejected the application filed by the appellants to produce the secondary evidence in the absence of primary evidence in order to prove the ‘Will’ in their favour.  The High Court while dismissing the application observed that as the pre-requisite condition of existence of Will is not proved, the Will cannot be permitted to be approved by allowing the secondary evidence.

A two-Judge bench of Justice Navin Sinha and Justice Krishna Murari, set-aside the judgment of the Punjab and Haryana High Court and 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. It is a settled position of law that for secondary evidence to be admitted foundational evidence has to be given being the reasons as to why the original Evidence has not been furnished.”

The Supreme Court relied on Judgement laid down in, “Ashok Dulichand Vs. Madahavlal Dube and Anr., and it was held as under :- “According to Clause (a) of Section 65 of Indian Evidence Act, Secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved or of any person out of reach of, or not subject to, the process of the Court of any person legally bound to produce it, and when, after the notice mentioned in Section 66 such person does not produce it. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given.”

In the matter of Rakesh Mohindra vs. Anita Beri and Ors., the Supreme Court has observed as under:- “The preconditions for leading secondary evidence are that such original documents could not be produced by the party relying upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the non-production of primary evidence. Unless, it is established that the original documents is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot accepted.”

Briefly stated the facts of the case are that the appellants preferred a suit for declaration to the effect that they are owners to the extent of ½ share each of the land owned by Babu Singh son of Phuman Singh, situated in village Kokri Kalan, Tehsil & District Moga and Mutation No. 9971 dated 28.02.1991 and Mutation No. 9359 dated 25.02.1991 sanctioned by the Assistant Collector Second Grade, Moga in favour of Baldev Singh (predecessors-in-interest of respondent nos.1 and 2) and Shamsher Singh (respondent No.3) are illegal, null and void, as the said two mutations have been sanctioned on the basis of a forged Will dated 20.03.1988.

Learned counsel for the appellants contended that the impugned order is not sustainable in the eyes of law as it suffers from patent errors of law and is against the letter & spirit of Sections 65 & 66 of the Evidence Act. It is further pointed out that Section 65(a) of the Act allows the production of secondary evidence when the original is shown and appears to be in possession or power of one against whom the document is sought to be proved, or 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 the notice mentioned in Section 66, such person does not produce it.

Supreme Court held, “In view of the aforesaid factual situation prevailing in the case at hand, it is clear that the factual foundation to establish the right to give secondary evidence was laid down by the appellants and thus the High Court ought to have given them an opportunity to lead secondary evidence. The High Court committed grave error of law without properly evaluating the evidence and holding that the pre-requisite condition i.e., existence of Will remained unestablished on record and thereby denied an opportunity to the appellants to produce secondary evidence.”

“Needless to observe that merely the admission in evidence and making exhibit of a document does not prove it automatically unless the same has been proved in accordance with the law,” Noted the Court.

Supreme Court set aside the order passed by the Punjab and Haryana High Court and held that, “the Judgment rendered by the High Court suffers from material irregularity and patent errors of law and not liable to be sustained.”

“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,” Said by the Supreme Court.

-India Legal Bureau