Case Note & Summary
The petitioner, defendant no.6 in Regular Civil Suit No. 689 of 2009, challenged an order passed by the trial court granting leave to the plaintiff to lead secondary evidence in respect of three documents: Kabja, hakkasod, and kararpatra, all dated 18th December 1984. The plaintiff had sought leave via an application dated 23rd August 2012. The petitioner resisted the application, but the trial court overruled objections and granted permission. The High Court, relying on its earlier judgment in Karthik Gangadhar Bhat v. Nirmala Namdeo Wagh and anr. (2017 4 Crimes (HC) 536), held that such applications for leave to lead secondary evidence are misconceived and not maintainable. The court observed that a party may always lead secondary evidence without prior leave, subject to the conditions under Section 65 of the Indian Evidence Act, 1872. Consequently, the impugned order was set aside, and the writ petitions were allowed.
Headnote
A) Evidence Law - Secondary Evidence - Leave to Lead Secondary Evidence - Indian Evidence Act, 1872, Sections 63 and 65 - The court held that an application seeking leave to lead secondary evidence is misconceived and not maintainable, as a party may always lead secondary evidence without prior leave, subject to proof of existence of original and fulfillment of conditions under Section 65. The impugned order granting such leave was set aside. (Paras 3-4)
Issue of Consideration
Whether the trial court's order granting leave to lead secondary evidence is sustainable in law.
Final Decision
The High Court allowed the writ petitions and set aside the impugned order granting leave to lead secondary evidence.
Law Points
- Secondary evidence
- Leave to lead secondary evidence
- Indian Evidence Act
- 1872
- Section 63
- Section 65
- Civil Procedure Code
- 1908
- Order 18 Rule 17A
Case Details
Writ Petition No. 6482 of 2013, Writ Petition No. 6483 of 2013, Writ Petition No. 6484 of 2013
Mr. Anand S. Kulkarni for the petitioners; Mr. Surel S. Shah for respondent no.1
Jaysing Ramchandra Gungewale and Ors. (in WP 6482/2013); Dashrath Dhansing Birbanwale and Ors. (in WP 6483/2013); Devising Shamsing Kaiyyawale and Ors. (in WP 6484/2013)
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Nature of Litigation
Civil writ petition challenging an order granting leave to lead secondary evidence in a regular civil suit.
Remedy Sought
The petitioner (defendant no.6) sought to set aside the trial court's order granting leave to the plaintiff to lead secondary evidence.
Filing Reason
The trial court overruled the petitioner's objections and granted permission to the plaintiff to lead secondary evidence in respect of three documents.
Previous Decisions
The trial court allowed the plaintiff's application dated 23rd August 2012 seeking leave to lead secondary evidence.
Issues
Whether the trial court's order granting leave to lead secondary evidence is sustainable in law.
Submissions/Arguments
The petitioner argued that the application for leave to lead secondary evidence is misconceived and not maintainable, relying on the judgment in Karthik Gangadhar Bhat v. Nirmala Namdeo Wagh.
Ratio Decidendi
An application seeking leave to lead secondary evidence is misconceived and not maintainable; a party may always lead secondary evidence without prior leave, subject to the conditions under Section 65 of the Indian Evidence Act, 1872.
Judgment Excerpts
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.
Procedural History
The plaintiff in Regular Civil Suit No. 689 of 2009 filed an application dated 23rd August 2012 seeking leave to lead secondary evidence. The trial court allowed the application over the objections of defendant no.6. Defendant no.6 challenged this order by filing the present writ petitions.
Acts & Sections
- Indian Evidence Act, 1872: Section 63, Section 65
