Supreme Court explains Principles for Admissibility Of Secondary Evidence

 After perusing various judgments of this Court, we can

deduce the following principles relevant for examining the

admissibility of secondary evidence:{Para 33}

33.1 Law requires the best evidence to be given first, that is,

primary evidence. {Neeraj Dutta v. State (NCT of Delhi) (5-Judge Bench) (2023) 4 SCC 731; Yashoda v. K.

Shobha Rani (2-Judge Bench) (2007) 5 SCC 730}

33.2 Section 63 of the Evidence Act provides a list of the

kinds of documents that can be produced as secondary

evidence, which is admissible only in the absence of

primary evidence.{ Yashoda (supra)}

33.3 If the original document is available, it has to be

produced and proved in the manner prescribed for

primary evidence. So long as the best evidence is within

the possession or can be produced or can be reached,

no inferior proof could be given.{ Yashoda (supra)}

33.4 A party must endeavor to adduce primary evidence of

the contents, and only in exceptional cases will

secondary evidence be admissible. The exceptions are

designed to provide relief when a party is genuinely

unable to produce the original through no fault of that

party.{ M. Chandra v. M. Thangamuthu (2-Judges Bench) (2010) 9 SCC 712}

33.5 When the non-availability of a document is sufficiently

and properly explained, then the secondary evidence

can be allowed.{ Neeraj Dutta (supra)}

33.6 Secondary evidence could be given when the party

cannot produce the original document for any reason

not arising from his default or neglect.{ Surendra Krishna Roy v. Muhammad Syed Ali Matwali Mirza 1935 SCC OnLine PC 56}

33.7 When the copies are produced in the absence of the

original document, they become good secondary

evidence. Still, there must be foundational evidence that

the alleged copy is a true copy of the original. {H. Siddiqui v. A. Ramalingam, (2-Judge Bench) (2011) 4 SCC 240}

33.8 Before producing secondary evidence of the contents of

a document, the non-production of the original must be

accounted for in a manner that can bring it within one

or other of the cases provided for in the section.{ H. Siddiqui v. A. Ramalingam (2-Judges Bench) (2011) 4 SCC 240}.

33.9 Mere production and marking of a document as an

exhibit by the Court cannot be held to be due proof of

its contents.{ Neeraj Dutta (supra)}. It has to be proved in accordance with the law.{H. Siddiqui (supra)}.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4910 OF 2023

VIJAY Vs UNION OF INDIA & ORS. 

Author: SANJAY KAROL J.

 Citation: 2023 INSC 1030.

Read full Judgment here: Click here

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Whether the court should admit copy of unstamped document as secondary evidence?

 We may now consider Section 35 of the Stamp Act which

forbids the letting of secondary evidence in proof of its

contents. The section excludes both the original instrument

and secondary evidence of its contents if it needs to be

stamped or sufficiently stamped. This bar as to the

admissibility of documents is absolute. Where a document

cannot be received in evidence on the ground that it is not

duly stamped, the secondary evidence thereof is equally

inadmissible in evidence. {Para 36}

37. In relation to secondary evidence of

unstamped/insufficiently stamped documents, the position

has been succinctly explained by this Court in Jupudi

Kesava Rao (supra) wherein it dealt with an issue, i.e.,

whether reception of secondary evidence of a written

agreement to grant a lease is barred by the provisions of

Sections 35 and 36 of the Stamp Act and answered it in

affirmative. It observed:

"12. The Indian Evidence Act, however, does not purport to deal

with the admissibility of documents in evidence which require to

be stamped under the provisions of the Indian Stamp Act.

13. The first limb of Section 35 clearly shuts out from evidence any

instrument chargeable with duty unless it is duly stamped. The

second limb of it which relates to acting upon the instrument will

obviously shut out any secondary evidence of such instrument, for

allowing such evidence to be let in when the original admittedly

chargeable with duty was not stamped or insufficiently stamped,

would be tantamount to the document being acted upon by the

person having by law or authority to receive evidence. Proviso (a)

is only applicable when the original instrument is actually before

the Court of law and the deficiency in stamp with penalty is paid

by the party seeking to rely upon the document. Clearly secondary

evidence either by way of oral evidence of the contents of the

unstamped document or the copy of it covered by Section 63 of the

Indian Evidence Act would not fulfil the requirements of the

proviso which enjoins upon the authority to receive nothing in

evidence except the instrument itself. Section 25 is not concerned

with any copy of an instrument and a party can only be allowed to

rely on a document which is an instrument for the purpose of

Section 35. "Instrument is defined in Section 2(14) as including

every document by which any right or liability is, or purports to be

created, transferred, limited, extended, extinguished or recorded.

There is no scope for the inclusion of a copy of a document as an

instrument for the purpose of the Stamp Act.

If Section 35 only deals with original instruments and not copies,

Section 36 cannot be so interpreted as to allow secondary evidence

of an instrument to have its benefit.”

(Emphasis supplied)

38. This Court, in Hariom Agrawal v. Prakash Chand

Malviya25, reiterated the principle laid down in Judupi

Kesava Rao (supra) and observed that:

“10. It is clear from the decisions of this Court and a plain

reading of Sections 33, 35 and 2(14) of the Act that an

instrument which is not duly stamped can be impounded

and when the required fee and penalty has been paid for such

instrument it can be taken in evidence under Section 35 of

the Stamp Act. Sections 33 or 35 are not concerned with any

copy of the instrument and party can only be allowed to rely

on the document which is an instrument within the meaning

of Section 2(14). There is no scope for the inclusion of the

copy of the document for the purposes of the Stamp Act. Law

is now no doubt well settled that copy of the instrument

cannot be validated by impounding and this cannot be

admitted as secondary evidence under the Stamp Act, 1899.”

39. Thus, if a document that is required to be stamped is not

sufficiently stamped, then the position of law is well settled

that a copy of such document as secondary evidence cannot

be adduced. 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4910 OF 2023

VIJAY Vs UNION OF INDIA & ORS. 

Author: SANJAY KAROL J.

 Citation: 2023 INSC 1030.

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What is basic concept of Primary Evidence and Secondary Evidence as per provisions of Indian Evidence Act?

 S 62 of Indian Evidence Act:-  Primary evidence.—Primary evidence means the document itself produced for the inspection of the court.

Explanation 1.—Where a document is executed in several parts, each part is primary evidence of the document.

Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.

Explanation 2.—Where a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest; but where they are all copies of a common original, they are not primary evidence of the contents of the original.

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Whether it is mandatory to file application seeking permission to lead secondary evidence?

Question therefore, would emerge as to whether a separate application would be required by a party to show existence of the circumstances enumerated under the Evidence Act. {Para 84}

85. This position precisely appears to be traded over under the decision in "Dhanpat V/s. Sheo Ram (Deceased) through Legal Representatives and Others", reported in MANU/SC/0330/2020 : (2020) 16 SCC 209, delivered by the Supreme Court observing that an application for leading secondary evidence would not be mandatory, if there is reference to foundational facts for the same in the plaint or evidence.

86. The Supreme Court, in its decision in the case of "Dhanpat", (supra) has discussed the provisions of section 65 of the Evidence Act and has considered in paragraph 22 as under,

"22. There is no requirement that an application is required to be filed in terms of Section 65(c) of the Evidence Act before the secondary evidence is led. A party to the lis may choose to file an application which is required to be considered by the trial court but if any party to the suit has laid foundation of leading of secondary evidence, either in the plaint or in evidence, the secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed."

87. In the case if the party concerned has referred to the background and the circumstances and facts necessitating leading secondary evidence, it appears that it would be able to lead secondary evidence without requiring permission from the court. Whether the facts, circumstances and background are available to the party concerned will have to be judged by the court with reference to the evidence on record in this regard. If the party fails to bring about such evidence, it is needless to say that evidence led on a document on such failed background, circumstances and facts, would not be admissible and will have to be excluded from consideration. However, if the party is able to bring about evidence with regard to circumstances, background and facts, secondary evidence of the document would be admissible and would be considered by the court. In such a case, it appears, since there is reference to facts, circumstances and background, a repeat application referring to the same would not be a necessity and the case with reference to the same will have to be proved on evidence without which secondary evidence of a document would not be admissible.

88. The Supreme Court, in paragraph 20 of the judgment in the case of "Dhanpat V/s. Sheo Ram (Deceased) through Legal Representatives and Others", reported in MANU/SC/0330/2020 : (2020) 16 SCC 209, has observed, thus,

20. This Court in Bipin Shantilal Panchal V. State of Gujarat and Another, deprecated the practice in respect of the admissibility of any material evidence, where the Court does not proceed further without passing order on such objection. It was held that all objections raised shall be decided by the Court at the final stage. The Court held as under:

"14. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed).

15. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence-taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses."

89. Several situations are likely to arise and one may be such where there are no foundational facts averred in the pleadings by a party and secondary evidence of a document is led. Ordinarily, evidence led without basis in the pleadings is to be ignored and is inadmissible. Going by present practice of giving evidence in examination-in-chief, other party may have an opportunity to object to leading of such secondary evidence and contending the same to be inadmissible.

91. But would an application be precluded referring to facts, circumstances and background, seeking permission to lead secondary evidence in respect of a document not referred to in pleadings.

92. Corollary of Dhanpat's case (supra) discernibly appears to be application would be required if foundational facts have not been referred to in any form and secondary evidence is sought to be led.

94. From foregoing discussion, it would be seen that scope of answer to question posed is whelmed by decisions of the Supreme Court in the cases of "Dhanpat" (supra) and "Jagmail Singh" (supra). Thus, emerging position is that a party may furnish secondary evidence and filing of an application seeking permission to lead secondary evidence would not be mandatory. However, an application for leading secondary evidence by a party is not precluded. Reference stands answered accordingly.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 8442 of 2019

Decided On: 22.09.2021

Shaikh Aftab Ahmed and Ors. Vs. Bhimrao and Ors.

Hon'ble Judges/Coram:

S.P. Deshmukh and Vibha Kankanwadi, JJ.

Author: S.P. Deshmukh, J.

Citation: MANU/MH/2743/2021, 2023 Lawweb (Bom HC ) 1.

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Whether Court Should permit the production of secondary evidence if the party lays the factual foundation?

 It is trite that under the Evidence Act, 1872 facts have to be

established by primary evidence and secondary evidence is only an

exception to the rule for which foundational facts have to be established

to account for the existence of the primary evidence. In the case of H.

Siddiqui (dead) by LRs Vs. A. Ramalingam3, this Court reiterated that

where original documents are not produced without a plausible reason

and factual foundation for laying secondary evidence not established it

is not permissible for the court to allow a party to adduce secondary

evidence.

16. 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.

17. 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.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1889 OF 2020

JAGMAIL SINGH  Vs  KARAMJIT SINGH

KRISHNA MURARI, J.

Dated: MAY 13, 2020

Citation: 2021(1) MHLJ 496

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Whether party can examine scribe in place of attesting witness to prove execution of document?

In Abinash

Chandra Bidvanidhi Bhattacharya v. Dasarath Malo [ILR

56 Cal 598] it was held that a person who had put his

name under the word “scribe” was not an attesting

witness as he had put his signature only for the purpose

of authenticating that he was a “scribe”. In Shiam

Sunder Singh v. Jagannath Singh [54 MLJ 43] , the Privy

Council held that the legatees who had put their

signatures on the will in token of their consent to its

execution were not attesting witnesses and were not

disqualified from taking as legatees.”

25. In the aforesaid case, it had been held that the person who put his

name under the word “scribe” was not an attesting witness, further

that the legatees who had put their signatures on the Will were not

attesting witnesses. 

26. Mr. Swarup relied on judgment reported as N. Kamalam (Dead) &

Anr. v. Ayyasamy & Anr.12 that in the absence of Maha Singh

deposing that he is the attesting witness along with Azad Singh, his

statement cannot be treated to be that of attesting witness. We do

not find any merit in the said argument. In the aforesaid case, it

was the scribe who was said to be the attesting witness. This Court

held as under:

“27. …The animus to attest, thus, is not available, so far

as the scribe is concerned: he is not a witness to the will

but a mere writer of the will. The statutory requirement

as noticed above cannot thus be transposed in favour of

the writer, rather goes against the propounder since both

the witnesses are named therein with detailed address

and no attempt has been made to bring them or to

produce them before the court so as to satisfy the

judicial conscience. Presence of scribe and his signature

appearing on the document does not by itself be taken to

be the proof of due attestation unless the situation is so

expressed in the document itself — this is again,

however, not the situation existing presently in the

matter under consideration.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1960 OF 2020

DHANPAT Vs  SHEO RAM 

Dated:MARCH 19, 2020.

HEMANT GUPTA, J.

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Whether a party can take objection to the admissibility of a document in the appeal if said document was exhibited without objection in the trial court?

 To the same effect is the judgment of the Privy Council in the case of Gopal Das & Anr. v. Sri Thakurji & Ors. reported in MANU/PR/0002/1943 in which it has been held that when the objection to the mode of proof is not taken, the party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof. That when the objection to be taken is not that the document is in itself inadmissible but that the mode of proof was irregular, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. Similarly, in Sarkar on Evidence, 15th Edition, page 1084, it has been stated that where copies of the documents are admitted without objection in the trial Court, no objection to their admissibility can be taken afterwards in the court of appeal. When a party gives in evidence a certified copy, without proving the circumstances entitling him to give secondary evidence, objection must be taken at the time of admission and such objection will not be allowed at a later stage.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2434 of 2000

Decided On: 04.08.2004

Dayamathi Bai Vs. K.M. Shaffi

Hon'ble Judges/Coram:

Ashok Bhan and S.H. Kapadia, JJ.

Citation: (2004) 7 SCC 107:AIR 2004 SC 4082

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Golden rules for proof of photocopy as secondary evidence

 In Surinder Kaur v. Mehal Singh and others MANU/PH/3614/2013 : 2014(1) R. C.R. (civil) 467 it has been held as under:-

"a) Photostat copy of a document can be allowed to be produced only in absence of original document.

b) When a party seeks to produce Photostat copy it has to lay the foundational facts by proving that original document existed and is lost or is in possession of opposite party who failed to produce it. Mere assertion of the party is not sufficient to prove these foundational facts.

c) The objections as to non existence of such circumstances or non existence of foundational facts must be taken at earliest by the opposite party after the photostat copy is tendered in evidence.

d) When the opposite party raises objection as to authenticity of the Photostat copy its authenticity has to be determined as every copy made from a mechanical process may not be accurate. Both the requirements of clause (2) of section 63 are to be satisfied.

e) Allowing production of Photostat copy in evidence does not amount to its proof. Its probative value has to be proved and assessed independently. It has to be shown that it was made from original at particular place and time.

f) In cases where the Photostat copy is itself suspicious it should not be relied upon. Unless the court is satisfied that the Photostat copy is genuine and accurate it should not be read in evidence.

g) The accuracy of photostat copy shall be established on oath to the satisfaction of court by the person who prepared such copy or who can speak of its accuracy."

18. In view of the above, it is a settled principle of law that mere exhibition of a document does not dispense with proof of its execution. Therefore, photostat copies of the documents are required to be proved in terms of their execution. 

IN THE HIGH COURT OF PUNJAB AND HARYANA

CR No. 5516 of 2007 (O&M)

Decided On: 14.03.2019

 Sham Gopal  Vs.  Ved Parkash and Ors.

Hon'ble Judges/Coram:

Jaishree Thakur, J.

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Whether a party can adduce secondary evidence of photocopy of insufficiently stamped document after impounding it?

 It was the case of the appellant-tenant that the original copy of the agreement which was with him was stolen and thus he was unable to produce the original document dated 28.3.1988, but was in possession of a photostat copy of the agreement and made a prayer for receipt of the photocopy of the agreement as secondary evidence under Section 63 of the Indian Evidence Act, 1872.

The provisions of this section (section 35) which allow a document to be admitted in evidence on payment of penalty, have no application when the original document, which was unstamped or was insufficiently stamped, has not been produced; and, accordingly, secondary evidence of its contents cannot be given. To hold otherwise would be to add to the Act a provision which it does not contain. Payment of penalty will not render secondary evidence admissible, for under the stamp law penalty is leviable only on an unstamped or insufficiently stamped document actually produced in Court and that law does not provide for the levy of any penalty on lost documents . This Court had an occasion again to consider the scope and ambit of Sections 33(1), 35 and 36 of the Act and Section 63 of the Indian Evidence Act in Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao and others AIR 1971 SC 1070 and held that :-

13. The first limb of Section 35 clearly shuts out from evidence any instrument chargeable with duty unless it is duly stamped. The second limb of it which relates to acting upon the instrument will obviously shut out any secondary evidence of such instrument, for allowing such evidence to be let in when the original admittedly chargeable with duty was not stamped or insufficiently stamped, would be tantamount to the document being acted upon by the person having by law or authority to receive evidence. Proviso (a) is only applicable when the original instrument is actually before the Court of law and the deficiency in stamp with penalty is paid by the party seeking to rely upon the document.

Clearly secondary evidence either by way of oral evidence of the contents of the unstamped document or the copy of it covered by Section 63 of the Indian Evidence Act would not fulfil the requirements of the proviso which enjoins upon the authority to receive nothing in evidence except the instrument itself. Section 35 is not concerned with any copy of an instrument and a party can only be allowed to rely on a document which is an instrument for the purpose of Section 35. `Instrument is defined in Section 2(14) as including every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished or recorded. There is no scope for inclusion of a copy of a document as an instrument for the purpose of the Stamp Act.

14. If Section 35 only deals with original instruments and not copies Section 36 cannot be so interpreted as to allow secondary evidence of an instrument to have its benefit.

Law is now no doubt well settled that copy of the instrument cannot be validated by impounding and this cannot be admitted as secondary evidence under the Indian Stamp Act, 1899.

SUPREME COURT OF INDIA

Hariom Agrawal Vs. Prakash Chand Malviya dated 8 October 2007.

B.N. Agrawal,P.P. Naolekar & P. Sathasivam

(arising out of Special Leave Petition (Civil)No.12573 of 2006)
Citation:(2007) 8 SCC 514
(2007)

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Procedure to be followed by prosecution while adducing secondary evidence

The learned Counsel then relied on the judgment in the case of Hira Singh and Anr. Vs. Ajit Singh MANU/PH/1602/2017 : 2017 (4) PLR 446, wherein it is observed in paragraph 15 as under:-

"15. It is well settled proposition of law that in case the party wants to lead secondary-evidence, the Court is to examine the probative value of the document to be produced in the Court or to decide the question of admissibility of a document in a secondary evidence. The party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. Simply by saying that original document has been lost, is not sufficient to allow the party to lead secondary evidence."

8. In the present case, the application (Exh. 329) is totally vague. There is absolutely no mention as to how the audit report got lost and what efforts were made by the Investigating Officer to search out the audit report. The copy of the audit report proposed to be produced also was not annexed to the application (Exh. 329). The said application was not supported by the affidavit of any responsible officer. The impugned order is totally unsatisfactory. It is a non-speaking order. It does not contain the reasons why the learned Chief Judicial Magistrate granted permission to produce secondary evidence. There is no mention whether the pre-conditions, mentioned in Section 65 of the Evidence Act, have been fulfilled by the prosecution for producing secondary evidence. The impugned order is not at all sustainable and is liable to be quashed and set aside.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Writ Petition No. 666 of 2018

Decided On: 21.06.2018

 Sandeep Komalsingh Rajput Vs. State of Maharashtra

Hon'ble Judges/Coram:

Sangitrao S. Patil, J.

Citation: 2019(1)MHLJ 300

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Whether it is necessary to file application seeking permission to adduce secondary evidence?

 This, I regret to say, is a misconception that has now attained
the proportions of an epidemic, especially in the Court of Small
Causes and in the civil courts. Apparently, none of these courts
seems to care that there is no provision in the Code of Civil
Procedure 1908 or the Evidence Act for any such application.
Nobody seems to care either that there are reported decisions
starting from Indian Overseas Bank v Triokal Textile Industries &
Ors.,1 of Vazifdar J (as he then was) directly to the contrary and
saying that no such application is maintainable, desirable or even
necessary.
11. I have recently set out the law on this2 and I will say so briefly
once again: either secondary evidence is led or it is not led. Either
the provisions of Section 65 are met or they are not met. No
permission of a Court is required to lead evidence of any kind. No
judge in the subordinate judiciary to this High Court will hereafter
will insist on any such application under any circumstances
whatsoever. I do not think I can put it in any clearer terms than this.
Any such order is wholly illegal and liable to be set aside. A copy of
this order is now to be circulated to every Civil Judge in the State of
1AIR 2007 Bom 24 : 2006 (6) Bom CR 85.
2 Order dated 3rd November 2017 in Writ Petition No. 11151 of 2017,
Karthik Gangadhar Bhat v Nirmala Namdeo Wagh & Anr. See also:
Anandji Virji Shah & Ors v Ritesh Sidhwani & Ors, Chamber Summons
No. 1153 of 2015 in Suit No. 395 of 2007, decided on 27th June 2016.;
Ajaykumar Krishnaprasad Seth v Maya Ramesh Belvetkar & Anr,
Chamber Summons No. 17 of 2016 in Testamentary Suit No. 18 of 2003
in Testamentary Petition No. 628 of 2001, decided on 13th October
2016.; MMTC Ltd v Samarth Auto Care Pvt Ltd, Suit No. 427 of 1995,
order dated 1st October 2014.; Lajwanti v Jayshree P Madhwani & Ors,
Testamentary Suit No. 6 of 2004, order dated 14th December 2016.;
Sumati & Ors v Yashodhara & Ors, 2016 (6) All MR 507 (per Shukre J).

Maharashtra. To clarify: in an evidence affidavit under Order 18, a
witness may well say of a given document that he cannot prove it by
direct evidence and then proceed to adduce the secondary evidence
in compliance with Section 65 of the Evidence Act. The trial court
is to consider that evidence, viz., the reason given for not leading
direct evidence, and the secondary evidence led, and is to then
decide whether the secondary evidence led is sufficient. That is all.
There is absolutely no question of an application, whether styled as
an interim application or a ‘MARJI’ application, for ‘permission’ to
lead secondary evidence. The Court cannot refuse that permission,
and it cannot insist on an application for any such permission.
REPORTABLE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 82 OF 2016

Parasanbai Dhanraj Jain Vs Sunanda Madhukar Jadhav 

CORAM: G.S. PATEL, J
DATED: 10th November 2017

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Whether court should allow exhibition of xerox copy of document if existence of original is not denied?

Learned counsel for the petitioner submits that the plaintiff's application for direction to the defendants to produce the original was rejected by the trial Court and in the premises, the impugned orders for production of secondary evidence and marking of the xerox copy could not have been passed. The application for production of the original was rejected on the basis that the plaintiff had an option to follow the other provisions of the Evidence Act to prove the document. One of the provisions to be followed was Clause (a) of Section 65. The plaintiff, accordingly, applied for production of secondary evidence after issuing a notice under Section 66. The plaintiff has deposed in his oral evidence that the document has been in possession or power of defendant No. 1. The order of the Court allowing secondary evidence does not suffer from any infirmity on that account. After all, the existence of the document itself is not denied by the defendant at this stage. Learned counsel for the petitioner relies on the judgment of our Court in the case of Prakash Gurudas Timblo and Others vs. Hemlatabai Ravikant Darne and Others, reported in MANU/MH/1117/2016 : 2016 (5) Mh.L.J. 320 : [2016 (4) ALL MR 913], to claim that the Court must be first satisfied about the existence of the original before an order permitting secondary evidence of it is passed. The opinion to be formed by the Court, as observed in Prakash Gurudas Timblo, is merely a prima facie opinion. Whether the original actually exists is a matter of trial. At the stage of admission of evidence, it is sufficient for the Court to form a prima facie opinion that the original exists and that opinion the trial Court in the present case can certainly be said to have formed.

5. The document thus appearing to be in existence and in possession or power of defendant No. 1, in the light of the provisions of Section 65 of the Evidence Act, permission to adduce secondary evidence could well be granted. No fault can be found with this order. The order permitting secondary evidence, besides, as observed above, does not prejudice the petitioner in questioning the very existence of the original or the efficacy of the secondary evidence to prove its execution. There is, thus, no merit in the challenge to the order dated 8th July, 2015 permitting secondary evidence. The order permitting xerox copy of the partition deed passed on 7th July, 2017 is merely consequential upon the order permitting secondary evidence of the document.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 5738 of 2017

Decided On: 07.09.2017

 Satish Vs. Pramod and Ors.

Hon'ble Judges/Coram:

S.C. Gupte, J.

Citation: 2017(6) MHLJ 711

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Whether permission to adduce secondary evidence amounts to proof of that document?

 As regards the authority relied upon by learned counsel for the Petitioner in the case of H. Siddiqui (Dead) by LRs. v. A. Ramalingam, 2011 (2) ALL MR 938 (S.C.), it can be seen that, the said Judgment deals particularly with the proof of secondary evidence. It was held that, “mere admission of a document in evidence does not amount to its proof and the documentary evidence is required to be proved in accordance with law. The Court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon”. Here in the case, the Trial Court itself has specifically observed in paragraph No. 7 of its order that, “merely because Respondent No. 1-Plaintiff is permitted to lead secondary evidence regarding the letters claimed to be sent to the Defendants, it will automatically not proved that the letters were received by the Defendants and the burden lies on the Plaintiff to establish its case and the Defendant will get opportunity to cross-examine the witness of the Plaintiff on this aspect”.

10. Therefore, this Judgment cannot be of any help to the Petitioner, as in this case, by the impugned order, only the production of secondary evidence is allowed. Whether those documents are to be exhibited or admitted in evidence, that issue is kept open by the Trial Court also and it will be decided in the course of the trial.

In the High Court of Bombay

Civil Appellate Jurisdiction

(Before Shalini Phansalkar-Joshi, J.)

Rajendra Mahadev Todkar, 

v.

 M/s. Paranjpe Schemes (Construction) Company Limited, 

Writ Petition No. 1385 of 2017

Decided on January 5, 2018

Citation: 2018 SCC OnLine Bom 15 : (2018) 2 AIR Bom R 91

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Whether it is mandatory to file application seeking permission to adduce secondary evidence?

In the present case it appears that at an early stage an
application was filed styled as an ‘application under Section 65 of
the Evidence Act’ seeking ‘permission’ to prove the contents of a
lease deed by secondary evidence. A copy of this application is at
page 59, Exhibit “G”.
7. Section 65 of the Evidence Act reads thus:
“65. Cases in which secondary evidence relating to
documents may be given.— Secondary evidence may be
given of the existence, condition, or contents of a
document in the following cases:—
(a) When the original is shown or appears to be in the
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, or
of any person legally bound to produce it,
and when, after the notice mentioned in section 66, such
person does not produce it;
(b) when the existence, condition or contents of the
original have been proved to be admitted in writing by the

person against whom it is proved or by his representative
in interest;
(c) when the original has been destroyed or lost, or
when the party offering evidence of its contents cannot, for
any other reason not arising from his own default or
neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be
easily movable;
(e) when the original is a public document within the
meaning of section 74;
(f) when the original is a document of which a certified
copy is permitted by this Act, or by any other law in force in
India to be given in evidence;
(g) when the original consists of numerous accounts or
other documents which cannot conveniently be examined
in Court, and the fact to be proved is the general result of
the whole collection.
In cases (a), (c) and (d), any secondary evidence of
the contents of the document is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document,
but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general
result of the documents by any person who has examined
them, and who is skilled in the examination of such
documents.”

As is clear, this Section does not speak of any ‘application’ at all. It
only speaks, as Vazifdar J said, of the nature of the evidence adduced
as secondary evidence.
8. In this context, Section 63 is also to be noticed:
“63. Secondary evidence.— Secondary evidence means
and includes—
(1) certified copies given under the provisions
hereinafter contained;
(2) copies made from the original by mechanical
processes which in themselves insure the accuracy of the
copy, and copies compared with such copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties
who did not execute them;
(5) oral accounts of the contents of a document given
by some person who has himself seen it.”
9. The result of such applications, which as I have noted are
misconceived and not maintainable, is that exceedingly peculiar
orders are passed either allowing or disallowing the leave sought.
When leave is granted, apparently secondary evidence is then led
but that leave is, as we have seen, completely unnecessary and a
party may always place before the Trial Court secondary evidence as
contemplated by the Evidence Act without such leave. The result of
disallowing the application is even more serious because the
evidence in question is wholly excluded from consideration without

the slightest examination of the proposed secondary evidence.
There is no question of examining the secondary evidence first at
the stage of considering the application for leave. If the secondary
evidence is sufficient to prove the document, then the document
must be admitted into evidence. One of two things happen on any
such application: either the secondary evidence is not considered,
and the document is shut out, which is wrong, or the evidence is
considered twice over, once for the so-called ‘leave’ and then again
at the time of admitting the document.
10. This is no way to conduct the trial. Conceivably, it might
result in a document that might otherwise be admissible and proved
by secondary evidence being wholly left out only because of an order
of this kind on an application that in itself is misconceived and not
contemplated in law. This procedure wastes scarce judicial time and
achieves nothing. When a party goes to trial, he may have direct or
primary evidence of some documents, and secondary evidence of
others. It is for him to decide which of these he can best prove by
what evidence.
11. Take the two situations under Section 65(a) and (c). In the
first, notice is given to the other side to produce an original; the
other side does not produce the notice. Section 66 requires such a
notice, but also contains exceptions. One of these is in sub-clause
(2), “when, from the nature of the case, the adverse party must
know that he will be required to produce it”. There are others.
Therefore, it is not in every case that such a notice is compulsory. A
simple example is that of a letter by the party A to party B. The
original is with party B. He knows, or must know, from the nature of

the case, that he will be required to produce the original. He does
not. No notice is necessary, and party A can straightaway produce
his office copy of that letter. No ‘leave’ or ‘permission’ is required to
do this. Under Section 65(c), where the original is lost, the party
seeking to adduce secondary evidence must depose that the original
is lost and must also depose to the other conditions set out in that
sub-clause, viz., that he is not guilty of default or neglect. The
section itself says that in a case under 65(c), any evidence of the
contents is admissible. Again, there is simply no question of ‘leave’
being required.
12. In the present case, by the impugned order, the plaintiffs were
ostensibly ‘permitted’ to lead secondary evidence with respect to a
certified copy of a registered lease deed but were disallowed to lead
secondary evidence in respect of a gift deed.
13. The entire order is one that cannot be sustained. It adopts a
procedure unknown to our law and jurisprudence and directly
contrary to decisions of this court.
REPORTABLE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11151 OF 2017

Karthik Gangadhar Bhat, Vs  Nirmala Namdeo Wagh,

CORAM: G.S. PATEL, J
DATED: 3rd November 2017

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When it is not permissible to rely on xerox copy of document?

Exh. 38 as also Exh. 47 are secondary evidence. There is no evidence on record to show that original was not available. On the contrary, the trial Court has already recorded a finding that it is in possession of respondent. The lower appellate Court has not considered this aspect at all. On the strength of oral evidence of brother Kisan, the lower Appellate Court has found the contents of Exh. 47 to be more correct and therefore for this reason only it has refused to act upon Exh. 38. However, it has overlooked provisions of Sections 65 and 66 of Indian Evidence Act. Until and unless there was a leave sought to tender secondary evidence "and leave was granted, no Secondary evidence could have been looked into. Exh. 47 being secondary evidence, could not have been looked into at all by lower Appellate Court. The logic behind the arrangement as found by learned lower Appellate Court in Exh. 47 is already considered by me above. The arrangement allegedly made in favour of present respondent does not appear to be consistent with the earlier part of the document. However, it cannot be forgotten that Exh. 47 is only a xerox copy. Whether the alleged portion is an alteration or not also cannot be conclusively decided as original document has not come on record. It is a well known fact that in the process of preparing xerox copy, there can be several manipulations and hence it is unsafe to act upon said xerox copy.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

S.A. No. 427 of 1992

Decided On: 14.03.2008

Ganpat Pandurang Ghongade Vs. Nivrutti Pandurang Ghongade

Hon'ble Judges/Coram:

B.P. Dharmadhikari, J.

Citation: 2008(3) ALLMR 629

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Whether call details can be held admissible in evidence without certificate as per S 65B of Evidence Act?

Qua the admissibility of the call details, it is a matter of
record that though PWs 24, 25, 26 and 27 have endeavoured to
prove on the basis of the printed copy of the computer generated call
details kept in usual ordinary course of business and stored in a
hard disc of the company server, to co-relate the calls made from
and to the cell phones involved including those, amongst others
recovered from the accused persons, the prosecution has failed to
adduce a certificate relatable thereto as required under Section
65B(4) of the Act. Though the High Court, in its impugned
judgment, while dwelling on this aspect, has dismissed the plea of
inadmissibility of such call details by observing that all the
stipulations contained under Section 65 of the Act had been
complied with, in the teeth of the decision of this Court in Anvar
P.V. (supra) ordaining an inflexible adherence to the enjoinments of
Sections 65B(2) and (4) of the Act, we are unable to sustain this
finding. As apparently the prosecution has relied upon the
secondary evidence in the form of printed copy of the call details,
even assuming that the mandate of Section 65B(2) had been
complied with, in absence of a certificate under Section 65B(4), the
same has to be held inadmissible in evidence.
This Court in Anvar P.V. (supra) has held in no
uncertain terms that the evidence relating to electronic record being
a special provision, the general law on secondary evidence under
Section 63 read with Section 65 of the Act would have to yield
thereto. It has been propounded that any electric record in the form
of secondary evidence cannot be admitted in evidence unless the
requirements of Section 65B are satisfied. This conclusion of ours is
inevitable in view of the exposition of law pertaining to Sections 65A
and 65B of the Act as above.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
 CRIMINAL APPEAL NO. 2539 OF 2014

HARPAL SINGH @ CHHOTA  V  STATE OF PUNJAB

Bench: A.K. Sikri, Amitava Roy
Dated:NOVEMBER 21, 2016.
Citation:(2017) 1 SCC 734, 2017 CRLJ 551 SC

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Whether court can grant permission to adduce secondary evidence without recording satisfaction about existence of document?

The   law   discussed   above   would   show   that   in   order   that
secondary evidence is admitted, form of the secondary evidence is not
material, it could be in any form as for example copy or duplicate copy of
the copy of the original document, oral evidence or any other form and
that   three   conditions,   which   constitute   foundational   facts,   must   be
fulfilled while pressing into service the provision of Section 65(c) of the
Indian Evidence Act, namely, (a) the original document is in existence
and has been executed by its executants, (b) it has been lost or destroyed
or  cannot   be   produced   in   reasonable   time   for   any  other   reason   not
arising   from   own   default   or   neglect   of   the   party   leading   secondary
evidence, and  (c) the copy is the true copy of the original.
If these conditions or any one of them are or is not proved,
the secondary evidence cannot be admitted.
13. In the instant case, what has been done by the impugned
orders is only grant of permission to adduce secondary evidence.   The

secondary evidence, which is a copy of   photostat copy of the original
Will has not been admitted in evidence so far.   For such secondary
evidence to be admitted, the party interested in adducing the secondary
evidence would have to satisfy the above referred conditions by leading
necessary evidence in that regard.  So, the party would be required to be
given an opportunity to lead necessary evidence in order to satisfy the
Court about fulfilling of the necessary conditions so that the Will in
question can be admitted in evidence and marked as an exhibit.   That
stage has not reached so far.  As and when it reaches, the petitioners will
have all the opportunity to prove the respondent Nos.1 to 3 wrong or
satisfy the Court that the Will in question in fact does not exist and that it
has never been executed by late Smt. Sushila.  Therefore, learned Joint
Civil   Judge,   Senior   Division   has   rightly   held   that,   by   allowing   the
application   granting   permission   to   adduce   secondary   evidence,   no
prejudice   would   be   caused   to   the   rights   of   the   petitioners.     The
petitioners would certainly have a right to controvert the respondent
Nos.1 to 3 as well as respondent No.4 when they will say, subject to
necessary pleadings, that the original Will dated 6.11.1997 is in existence
and has been lost for the reasons not known to them.  Therefore, failure
to record a clear cut finding regarding satisfaction of the Court about
existence   or   otherwise   of   the   Will   in   question   has   not   caused   any
prejudice to the rights of the petitioners and in fact recording of such a
finding at this stage would have been premature.  After all the parties are

required   to   be   given   full   opportunity   for   proving   their   respective
contentions and this is what seems to be the import and effect of the
impugned   orders.     Then,   giving   of   permission   to   adduce   secondary
evidence by itself would not lead to an inference that secondary evidence
has   been   admitted.     As   stated   earlier,   for   admitting   the   secondary
evidence  the  necessary conditions  must   be  fulfilled  and  the  stage  of
fulfillment of those conditions or otherwise is yet to arrive and will arrive
when the parties stand before the Court for adducing necessary evidence.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION No.5984 OF 2015
  Smt. Sumati @ Asha w/o. Late Anil Subhedar,
    
V
   Yashodhara w/o. Late Sunil Subhedar,
       Aged adult,
    
        CORAM  :   S.B. SHUKRE, J.
        DATE      :       16th SEPTEMBER, 2016.
Citation: 2016(6) ALLMR 507

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