Principles On Admissibility Of Secondary Evidence : Supreme Court Explains

The Supreme Court on Tuesday (29.11.2023) explained the principles relevant for examining the admissibility of secondary evidence under the Indian Evidence Act, 1872. The Court also reiterated that "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."A bench of Justice Abhay S Oka and Justice Sanjay Karol referred to a catena of judgments to explain the relevant principles as follows: 1. Law requires the best evidence to be given first, that is, primary evidence. 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. 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. 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. 5. When the non-availability of a document is sufficiently and properly explained, then the secondary evidence can be allowed. 6. Secondary evidence could be given when the party cannot produce the original document for any reason not arising from his default or neglect. 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. 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. 9. Mere production and marking of a document as an exhibit by the Court cannot be held to be due proof of its contents.It has to be proved in accordance with the law.Factual BackgroundIn the case at hand, the Plaintiff and Defendant entered into an agreement to sell on 04.02.1998. The Plaintiff subsequently filed a suit for specific performance of the contract. He also moved an application to file a copy of the agreement to sell, as secondary evidence. This application was dismissed by the Additional District Judge in review, wherein it was held that secondary evidence of an agreement to sell could not be allowed as it was not executed on a proper stamp and hence barred under section 35 of the Stamp Act. This was later upheld by the High Court. Challenging this, the Plaintiff approached the Apex Court in appeal.Arguments AdvancedSr. Adv. Dr. Menaka Guruswamy, for the Appellant-Plaintiff, argued that the prohibition of Section 35 of the Stamp Act would not be applicable since there was no requirement to pay stamp duty at the time of execution of the agreement to sell, since it was executed before the Indian Stamp (Madhya Pradesh Amendment) Act, 1989 which introduced the requirement for payment of stamp duty. The Plaintiff should have been permitted to lead a copy of the agreement to sell as secondary evidence under Section 65 of the Evidence Act, it was argued.The Defendant on the other hand argued that a copy of an original document that is unstamped cannot be admitted as secondary evidence and since the original document is inadmissible under the Stamp Act, the copy of the same cannot be allowed as secondary evidence.Court's FindingsApplicability of Bar Under Section 35 Of Stamp ActSection 35 of the Stamp Act says that instruments that are not duly stamped are inadmissible in evidence. The Court considered in detail whether the bar of admissibility under Section 35 of the Indian Stamp Act would apply to said case.Article 23 of Schedule 1A of the Stamp Act deals with conveyances. At the time of execution of the agreement to sell in 1998, the conveyance was subjected to stamp duty under Article 23. This was later amended vide the Indian Stamp (Madhya Pradesh Amendment) Act, 1989. Subsequently an explanation was inserted in 1990, which said that, in case of an agreement to sell immovable property, if the possession of the property is transferred to the purchaser before execution or after execution of such agreement without executing the conveyance, then shall be deemed to be a conveyance and stamp duty should be levied.The Court held that the said explanation creates a new obligation for the party and, therefore, cannot be given retrospective application. The Court concluded that the amendment and the explanation would not affect the agreements executed prior to the amendments. Amendments that create rights and obligations are generally prospective in nature, the Court reiterated.“It is a well-established principle of law that...

Principles On Admissibility Of Secondary Evidence : Supreme Court Explains

Sheryl Sebastian

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