The Bombay High Court has said there is no need to seek permission for leading secondary evidence under Section 65 of the Indian Evidence Act before any Court.
Justice GS Patel was hearing a writ petition against an order of a trial court wherein an early application under S.65 of the Evidence Act was filed seeking ‘permission’ for proving contents of a lease deed through secondary evidence. The trial court disallowed the application partly.
Justice Patel began the 10-page order as follows:
“It is with great regret that I note that the Trial Courts continue persistently to ignore settled law and binding precedents on the question of leading secondary evidence. For reasons that are entirely unclear, there seems to be an insistence on filing an application for ‘permission’ to lead secondary evidence. This is simply wrong.”
Justice Patel followed the law laid down by Justice SJ Vazifdar in Indian Overseas Bank vs Triokal Textile Industries & Ors. In the said case, for chamber summons, such a leave was sought. Justice Vazifdar said such an application or leave was not only unnecessary but misconceived; it is always open to the party to lead secondary evidence before the trial court recording evidence or hearing the matter without having to file such an application.
Justice Patel also noted that such applications, if disallowed, lead to more complications as the evidence in question is not considered at all. He said:
“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.
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.”
The court also noted that in the present case, the plaintiffs were ‘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.
Thus, Justice Patel held that the order of the trial court could not be sustained as it adopts a procedure unknown to our law and jurisprudence and is contrary to the decisions of the high court.
The trial court order dated August 30, 2017, was quashed and set aside, and plaintiffs will now be at liberty to produce all secondary evidence without exception.