Secondary Evidence Can Be Permitted To Be Produced If The Party Establishes Factual Foundation For The Same: SC [Read Judgment]

The Supreme Court has observed that a court can permit a party to produce secondary evidence if he establishes a factual foundation for producing the same.

The bench comprising of Justices Navin Sinha and Krishna Murari observed that merely the admission in evidence and making exhibit of a document does not prove it automatically unless the same has been proved in accordance with the law.

In this case, the plaintiffs in a suit for declaration filed an application before the Trial Court under Section 65 and 66 of the Indian Evidence Act seeking permission to prove the copy of the Will executed by one Babu Singh in their favour by way of secondary evidence, as the original Will which was handed over to the village patwari for mutation could not be retrieved. This application came to be dismissed by the High Court (in revision proceedings) which held that as the prerequisite condition of existence of Will is not proved, the Will cannot be permitted to be approved by allowing the secondary evidence.

In appeal, the Supreme Court, took note of the relevant provisions of the Evidence Act and observed thus:

"A perusal of Section 65 makes it clear that secondary evidence may be given with regard to existence, condition or the contents of a document when the original is shown or appears to be in possession or power against whom the document is sought to be produced, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after notice mentioned in Section 66 such person does not produce it. It is a settled position of law that for secondary evidence to be admitted foundational evidence has to be given being the reasons as to why the original Evidence has not been furnished."

Referring to some earlier decisions in this regard, the bench observed:

"It is trite that under the Evidence Act, 1872 facts have to be established by primary evidence and secondary evidence is only an exception to the rule for which foundational facts have to be established to account for the existence of the primary evidence. In the case of H. Siddiqui (dead) by LRs Vs. A. Ramalingam3 , this Court reiterated that where original documents are not produced without a plausible reason and factual foundation for laying secondary evidence not established it is not permissible for the court to allow a party to adduce secondary evidence"

The Court, taking note of the facts of the case, observed that the factual foundation to establish the right to give secondary evidence was laid down by the applicants. It said that they would be entitled to lead secondary evidence in respect of the Will in question, but such admission of secondary evidence automatically does not attest to its authenticity, truthfulness or genuineness which will have to be established during the course of trial in accordance with law.  

Case no.: CIVIL APPEAL NO. 1889 OF 2020  Case name: JAGMAIL SINGH & ANR. vs. KARAMJIT SINGH
Coram: Justices Navin Sinha and Krishna Murari 

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