The High Court has clarified that secondary evidence may only be permitted when the precise conditions stipulated in Section 65 of the Indian Evidence Act are strictly fulfilled; mere allegations or unsubstantiated claims of loss or misplacement of the original document do not suffice. This ruling upholds established precedent and is binding on subordinate courts in Himachal Pradesh.
Summary
| Category | Data |
|---|---|
| Case Name | CMPMO/475/2017 of MANSHA RAM Vs AMAR NATH |
| CNR | HPHC010214272017 |
| Date of Registration | 31-10-2017 |
| Decision Date | 30-10-2025 |
| Disposal Nature | Disposed Off |
| Judgment Author | HON’BLE MR. JUSTICE AJAY MOHAN GOEL |
| Court | High Court of Himachal Pradesh |
| Bench | Single Judge (Hon’ble Mr. Justice Ajay Mohan Goel) |
| Precedent Value | Binding within the jurisdiction of the High Court of Himachal Pradesh |
| Overrules / Affirms | Affirms the strict interpretative standard for Section 65 of the Evidence Act |
| Type of Law | Evidence Law (Indian Evidence Act, 1872) |
| Questions of Law | When and under what circumstances can a party be permitted to lead secondary evidence under Section 65 of the Indian Evidence Act? |
| Ratio Decidendi | The court reaffirmed that leading secondary evidence is not at the mere discretion of the court, and is permissible only if the requirements of Section 65, sub-sections (a), (b), or (c), are strictly met. In the absence of clear proof that the original document is lost or destroyed (not due to the applicant’s fault or neglect), or that it is in the opponent’s possession and not produced despite notice, or if its existence is admitted in writing, secondary evidence must not be allowed. Unsubstantiated allegations or inconsistent facts regarding loss or misplacement of the original document do not meet Section 65’s threshold. The Trial Court erred in granting permission without judicial application of mind to these parameters. |
| Logic / Jurisprudence / Authorities Relied Upon by the Court | The judgment extensively analyses Section 65 of the Evidence Act, emphasizing a textual and strict application of the preconditions for secondary evidence, and the requirement for substantiated factual foundations. |
| Facts as Summarised by the Court | The plaintiff alleged a Will dated 12.12.2009 existed and was misplaced from the office of the Sub-Registrar after being submitted for registration. The defendant denied both the existence and misplacement of the Will. The plaintiff sought to lead secondary evidence after serving notice on the defendant, who opposed, claiming the Will was forged and the conditions for secondary evidence were not met. The Trial Court allowed the application, but the High Court found the requisite legal parameters were not satisfied. |
Practical Impact
| Category | Impact |
|---|---|
| Binding On | All subordinate courts within the jurisdiction of the Himachal Pradesh High Court |
| Persuasive For | Other High Courts, particularly regarding the strict interpretation of Section 65 of the Evidence Act |
| Follows | The binding standard for admitting secondary evidence under Section 65 of the Indian Evidence Act |
What’s New / What Lawyers Should Note
- The judgment reaffirms that courts have no general discretion to allow secondary evidence unless the explicit conditions of Section 65 are satisfactorily proven.
- Allegations of loss, theft, or misplacement of original documents must be clearly substantiated; mere assertions are insufficient.
- Admission of document existence by non-contesting defendants is irrelevant if the contesting defendant disputes it.
- Even if a lower court believes the secondary evidence may reveal the truth, it cannot bypass statutory requirements.
- Lawyers should ensure their applications for secondary evidence provide not just allegations, but clear, substantiated proof meeting Section 65’s requirements.
Summary of Legal Reasoning
- The High Court meticulously examined the factual basis of the application under Section 65 and concluded that none of the preconditions under clauses (a), (b), or (c) had been satisfied.
- For clause (a), the court found no substantiated evidence that the original Will was in the possession or power of the defendant; the plaintiff’s mere allegation, when contested, did not suffice.
- For clause (b), it was noted that the contesting defendant had not admitted—either in writing or otherwise—the existence of the Will, and thus secondary evidence could not be permitted on this ground.
- For clause (c), the court emphasized that mere allegations of the original’s loss (i.e., that it was misplaced at the Sub-Registrar office) were unsubstantiated, and indeed an inquiry report indicated only a photocopy was submitted, not the original.
- The court highlighted contradictions in the Trial Court’s order—granting an opportunity to lead secondary evidence despite the application not strictly meeting Section 65’s preconditions.
- The result: permission to lead secondary evidence was set aside for want of satisfaction of statutory prerequisites.
Arguments by the Parties
Petitioner
- The application for secondary evidence did not meet the requirements of Section 65.
- The Trial Court wrongly allowed the plaintiff’s application, granting an opportunity to prove a forged document.
- The order was perverse and involved grave irregularity, as statutory parameters were not satisfied.
Respondent
- There was no perversity in the order as, given the facts, there was no other way for the plaintiff to prove the Will.
- The existence of the Will was (allegedly) admitted by the defendant and other non-contesting defendants.
- The original Will was (allegedly) misplaced at the Sub-Registrar’s office, and the order rightly allowed secondary evidence since statutory protocol (notice, etc.) was followed.
Factual Background
The dispute centers around a property for which the plaintiff claimed ownership based on a Will allegedly executed on 12.12.2009 by Smt. Har Dei. The defendant denied both existence and execution of this Will, instead referring to an earlier Will of 1985. The plaintiff asserted that he had submitted the original Will for registration but that it was subsequently misplaced (or stolen) by the defendant in collusion with public officials. An application was moved for permission to lead secondary evidence, with the plaintiff claiming to have served notice to the defendant, who did not produce the original. The Trial Court allowed the plaintiff’s application, which was then challenged before the High Court.
Statutory Analysis
- Section 65 of the Indian Evidence Act was the centerpiece of the court’s analysis.
- The court examined subsections (a), (b), and (c), outlining the respective preconditions for allowing secondary evidence: (a) if the document is in the possession of the adversary and is not produced despite notice; (b) if the adversary admits the existence/content in writing; or (c) if the document is proven to be lost or destroyed, and loss/destruction is not due to applicant’s neglect.
- The court interpreted these provisions strictly, insisting on clear, substantiated facts before secondary evidence can be permitted.
- The court referenced a factual inquiry report showing no original Will was submitted—only a photocopy—further failing the statutory test for permitting secondary evidence.
Alert Indicators
- Precedent Followed – The decision applies established law, reaffirming the strict conditions for adducing secondary evidence under Section 65 of the Indian Evidence Act.