In a judgment delivered on March 19, the Supreme Court has held that there is no need to file an application seeking permission to produce secondary evidence.
The secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed, observed the Court.
This decision was given by a bench comprising Justices L Nageswara Rao and Hemant Gupta in the case Dhanpat vs Sheo Ram (Deceased) through Legal Representatives.
The case was a civil appeal, in which the validity of a Will was under dispute.
In a partition suit, the defendants had produced a Will, to deny the claim of the plaintiffs for share in the ancestral property. The certified copy of the registered Will was produced during the trial, on the ground that the original was lost.
Signed Carbon Copy Prepared In Same Process As Original Document Is Primary Evidence Under Sec.62 Evidence Act : SC [Read Order]
On the challenge raised by the appellants in the Supreme Court regarding the production of secondary evidence, the bench observed :
"There is no cross-examination of any of the witnesses of the defendants in respect of loss of original Will. Section 65 of the Evidence Act permits secondary evidence of existence, condition, or contents of a document including the cases where the original has been destroyed or lost. The plaintiff had admitted the execution of the Will though it was alleged to be the result of fraud and misrepresentation. The execution of the Will was not disputed by the plaintiff but only proof of the Will was the subject matter in the suit. Therefore, once the evidence of the defendants is that the original Will was lost and the certified copy is produced, the defendants have made out sufficient ground for leading of secondary evidence".
The bench further observed that there was no need for application for producing secondary evidence.
"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."
On merits, the Court found that the execution of the Will was proved in terms of Section 68 of the Indian Evidence Act, and dismissed the appeal.
Case DetailsTitle : Dhanpat vs Sheo Ram (Deceased) through Legal Representatives.Case No : Civil Appeal No. 1960/2020Appearances : Senior Advocate Manoj Swarup (for plaintiff-respondents); Adv Rishi Malhotra (for appellants- defendants).
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