Case Note & Summary
The petitioner, Suresh Pandharipande, the defendant in Regular Civil Suit No.107 of 2012, filed an application under Section 65 of the Evidence Act, 1872 seeking permission to lead secondary evidence. The trial court rejected the application on the ground that the contents regarding loss of the original document were vague and the photostat copy sought to be produced was not authenticated. The petitioner challenged this order in the High Court. The respondent, Parag Pandharipande, the original plaintiff, relied on the decision in Bank of Baroda v. Shree Moti Industries, which held that two things must be proved: existence of the original document and its loss. The High Court observed that while the proposition in that case is correct, the trial court must consider that the contents of the application can be established only if the party is permitted to enter the witness box and is subjected to cross-examination. The veracity of the statements made by the party seeking permission to lead secondary evidence has to be tested on cross-examination. The High Court set aside the trial court's order and directed the trial court to permit the defendant to enter the witness box and prove the contents of the application, after which the trial court shall decide the application afresh. The petition was allowed.
Headnote
A) Evidence Act - Secondary Evidence - Section 65 - Permission to Lead Secondary Evidence - The trial court rejected the application under Section 65 of the Evidence Act, 1872 on the ground that the contents regarding loss of original document were vague and the photostat copy was not authenticated. The High Court held that the veracity of the statements made in the application can be tested only if the party is permitted to enter the witness box and is subjected to cross-examination. The court cannot reject the application at the threshold without giving such opportunity. (Paras 2-5)
Issue of Consideration
Whether the trial court was justified in rejecting the application under Section 65 of the Evidence Act, 1872 for permission to lead secondary evidence on the ground that the contents regarding loss of original document were vague and the photostat copy was not authenticated, without giving the applicant an opportunity to prove the contents of the application by entering the witness box and being subjected to cross-examination.
Final Decision
The High Court allowed the writ petition, set aside the order dated 02.03.2015 passed by the trial court, and directed the trial court to permit the defendant to enter the witness box and prove the contents of the application under Section 65 of the Evidence Act, 1872. After such opportunity, the trial court shall decide the application afresh. Rule is made absolute in those terms. No order as to costs.
Law Points
- Secondary evidence
- Section 65 Evidence Act
- 1872
- Permission to lead secondary evidence
- Loss of original document
- Authentication of copy
- Opportunity to cross-examine
