Case Note & Summary
This writ petition under Article 227 of the Constitution of India was filed by the original plaintiffs against an order of the trial court rejecting their application to lead secondary evidence of a lost notarised agreement to sell. The plaintiffs had filed a suit for specific performance of an agreement to sell dated 12 June 2014, which was not registered but was notarised. During the proceedings, the trial court allowed an application for impounding the document under Section 34 of the Bombay Stamps Act, 1958, directing the plaintiffs to produce the original. However, the original document was misplaced by the plaintiffs' advocate. The plaintiffs then filed an application (Exhibit 28) under Section 65 of the Indian Evidence Act, 1872, seeking permission to lead secondary evidence of the document. The trial court rejected this application on 19 June 2019, citing a time-bound direction given by the High Court to decide the suit by 30 September 2019. The plaintiffs challenged this order in the High Court. The defendants admitted the execution of the agreement in their written statement and in a separate suit, which the plaintiffs contended eased their burden. The petitioners argued that the law, as laid down in Parasanbai Dhanraj Jain vs. Sunanda Madhukar Jadhav, does not require a separate application for secondary evidence, and the trial court could not have rejected the application. The respondents opposed the petition. The court, after hearing the parties and an amicus curiae, examined several precedents on secondary evidence, including Parasanbai, Karthik Gangadhar Bhat, Suresh Pandharipande, Rakesh Mohindra, Bank of Baroda, and Sumati Subhedar. The High Court noted that while no separate application for permission is required if the plaint pleads the loss, the party must still prove the foundational facts of existence, loss, and true copy. The trial court erred in rejecting the application outright without allowing the plaintiffs to lead evidence on these facts. The court set aside the trial court order and permitted the plaintiffs to lead secondary evidence, directing them to produce the photostat copy and file an affidavit regarding the loss, allowing cross-examination, and leaving the final decision on admissibility to the trial court. The suit was directed to be decided expeditiously, without strict adherence to the earlier time limit.
Headnote
A) Evidence – Secondary Evidence – Application for Permission – Under Sections 63 and 65 of the Indian Evidence Act, 1872 – The High Court held that while no separate application for permission to lead secondary evidence is necessary when foundational facts are pleaded in the plaint, the party must still prove the existence and loss of the original document before the secondary evidence can be admitted; the trial court cannot insist on filing of an application but if an application is filed, it should be allowed for the party to lead evidence on foundational facts (Paras 6-8, 15). B) Evidence – Secondary Evidence – Proof of Foundational Facts – Under Section 65(c) of the Indian Evidence Act, 1872 – The party seeking to lead secondary evidence must prove the existence and execution of the original document, its loss or destruction without default of the party, and that the copy is a true copy; the trial court must permit the party to enter the witness box and subject to cross-examination to test the veracity of the claim before admitting the secondary evidence (Paras 13-14). C) Civil Procedure – Admissions in Pleadings – Under the Code of Civil Procedure, 1908 – Where the opposite party admits the existence and execution of the document in the written statement or in another pleading, the burden on the party seeking to prove the document is reduced; such admission aids the court in dealing with secondary evidence (Paras 4, 6). D) Practice – Trial Court Procedure – Disregard of Binding Precedent – The High Court criticized the trial court for persistently ignoring settled law and binding precedents on secondary evidence; it noted that orders directing suits to be decided within a time frame cannot be a ground to reject an application for secondary evidence in disregard of the law (Paras 8-9, 15).
Issue of Consideration
Whether the trial court was justified in rejecting the application (Exhibit 28) seeking permission to lead secondary evidence of a lost notarised agreement to sell, given the admissions in pleadings and the legal position regarding secondary evidence.
Final Decision
The High Court allowed the writ petition, set aside the trial court's order dated 19.06.2019 rejecting Exhibit 28. The plaintiffs are permitted to lead secondary evidence. Directions: The plaintiffs shall produce the photostat copy of the document and file an affidavit in evidence regarding loss; the defendants may cross-examine; thereafter the trial court will decide admissibility of secondary evidence. The suit to be decided as expeditiously as possible, with previous time limit not binding.
Law Points
- secondary evidence
- Section 63 Indian Evidence Act
- Section 65(c) Indian Evidence Act
- foundational facts
- lost document
- admission in pleadings
- impounding under Bombay Stamps Act
- permission not required but application necessary to prove loss
- trial court cannot disregard binding precedent
- proof of existence and loss must be allowed before admitting secondary evidence
