Taken from the Blog: Secondary Evidence of Documents & Objections to Admissibility – How & When?

Saji Koduvath, Advocate, Kottayam.

No Application Needed for Filing or Admitting Secondary Evidence

Section 65of the Evidence Act permits secondary evidence in the circumstances or contingencies mentioned therein. The admissibility of the evidence, and the question whether the conditions for leading the secondary evidence are satisfied or not, comes for consideration only in the trial and at the time of exhibiting the document. It is no doubt clear that before adducing the secondary evidence, the party concerned has to establish that the situation stipulated in section 65 exists.

No Petition required for Filing or Admitting Photocopy

Our Apex Court held in Dhanpat v. Sheo Ram, (2020) 16 SCC 209, as under:

• “20. 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.”

In Satyam Kumar Sah v. Narcotic Control Bureau, 2019 SCC OnLine Del 8409, it is pointed out that Section 65 does not contemplate filing of any application or seeking prior permission of the court for leading secondary evidence; and that merely because an application under Section 65, Indian Evidence Act was filed and allowed, would not ipso facto make secondary evidence admissible, which is otherwise inadmissible.

Loss of Original: It is incumbent upon the party producing the secondary evidence to prove the loss of original under Sec. 65 Clause (c).  Permission is also needed to lead secondary evidence.

In a suit for specific performance, in Hira v. Smt. Gurbachan Kaur, 1988 (2) PLR 173, photocopy of the suit agreement alone was produced. After beginning evidence it was submitted that original was lost and application was filed seeking permission to adduce copy. Besides the delay in submitting loss of original, the plaintiff did not state when and under what circumstance the original was lost. In these circumstances the High Court found that the denial of permission to lead secondary evidence, by the trial court, was justifiable. (See also: Gurditta v. Balkar Singh, 1989 (1) PLR 418; Sobha Rani v. Ravikumar– AIR 1999 P&H 21).

In Raj Kumari v. Lal Chand, 1994 (1) Civil Court Cases 477, an issue was raised as to whether the applicant was entitled to secondary evidence. Therefore, it was held that the loss of the document was not required to be proved before trial, on the application under Section 65 Evidence Act.

• Note: It appears that in a proper case, in its very peculiar facts, it may be justified in non-suiting the plaintiff, taking a preliminary issue on non-production of original, or insufficiency of grounds for non-production of original; but, it appers, it cannot be taken as a general rule.

Photocopy is a Reliable Secondary Evidence

It falls under Sec. 63(2) it being the product of ‘mechanical processes which in themselves insure the accuracy of the copy‘.

As regards Photocopy, it is laid down in Surinder Kaur v. Mehal Singh, 2014(1) R.C.R. (civil) 467 (P&H) 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.”
  • Note: It appears that the proposition, ‘accuracy shall be established on oath’, is a surplusage (for, a photocopy, by itself, ‘insures the accuracy of the copy’ under Sec. 63, and the court is free to apply the presumptions under Sec. 114).

What are the instances where Notice is not required to render Secondary Evidence 

As per Section 66, there is no need to render a notice for tendering a secondary evidence:

• “(1) when the document to be proved is itself a notice;
• (2) when, from the nature of the case, the adverse party must know that he will be required to produce it;
• (3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;
• (4) when the adverse party or his agent has the original in Court;
• (5) when the adverse party or his agent has admitted the loss of the document;
• (6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.”

Read Blog: Notice to Produce Documents in Civil Cases