Whether an application u/s 65 of the Evidence Act is required to be filed seeking permission to lead secondary evidence, or not ?

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The answer is ‘No’.

How do we arrive at this conclusion ?

For this, let us begin at the beginnings and examine the first principles of proof of documents in the Evidence Act :

  • Proof of Documents : Section 61 of the Evidence Act provides for proof of documents either by primary, or by secondary evidence.
  • Section 64 provides for the rule of exclusion of secondary evidence or primacy of primary evidence – It says that documents must be proved by primary evidence, except in cases “hereinafter mentioned” i.e. in Section 65 & Section 65 A and Section 65 B. This is the manifestation of the Rule of Best Evidence, which excludes secondary evidence when primary evidence is available, except in certain situations.
  • Section 65 is one such exception which permits secondary evidence to be led in the contingencies mentioned therein.
  • Thus a litigant without seeking any permission from the court if satisfies the ingredients of Section 65 of the Evidence Act i.e. of the existence of the contingency or situation when secondary evidence is permitted to be led is entitled to lead such evidence.
  • What shall be the character of such evidence ? 
    • Firstly, such evidence has to be as to the existence of the contingency or situation in which secondary evidence is permissible, viz that the original document is in possession or power of the person against whom it is sought to be proved etc. or that the existence, condition or contents of original have been proved to be admitted by person against whom it is sought to be proved or that the original has been lost or destroyed or when original is not moveable etc. i.e. of the various situations mentioned in Clause (a) to (g) of Section 65. Therefore, evidence has to be led on these counts to prove that secondary evidence becomes admissible.
    • Secondly, such evidence will have to be in proof of document as also prescribed in Section 65 r/ w Section 63.

(Caveat : This evidence is led only to make secondary evidence of a document admissible; that is to say, this only renders the document admissible i.e for the court to consider the document as a piece of evidence before it; now the question whether it leads to proof of the fact, which it purports to prove or not, its relevancy, evidentiary value and probative worth are different enquiries altogether and the court is supposed to independantly test the evidence on these counts).

  • It is only after such evidence has been led can the court form an opinion whether the circumstances/ situation in which it is permissible to lead secondary evidence exist or not. For instance, whether a document has been lost or destroyed is a question of fact. It is only after the person claiming so has been cross examined, can a decision be taken as to the existence and loss or destruction of the original.
  • The court, on an application seeking permission to lead secondary evidence, even if setting out reasons as contained in either of the clauses of Section 65, cannot take a decision on the correctness of the reasons. The application thus serves no purpose except delaying the proceedings. Allowing or disallowing such applications, without giving an opportunity to the parties for laying a foundation for reception or rejection of secondary evidence, is impermissible in law. Factual controversies cannot be adjudicated on applications. That is however not to be understood as allowing a mini-trial on this aspect. The party seeking to prove document by secondary evidence is to lead evidence of the existence of circumstances/ situations in which secondary evidence is permissible, during leading its evidence, whether by way of examination of witnesses or cross examination of opponents witnesses, in the suit/ other proceeding itself. It will be decided at the stage of disposal of suit only, whether case for leading secondary evidence has been made out or not and if so, whether document stands proved by secondary evidence.

    • No provision of law makes it mandatory for an application u/s 65 of the Indian Evidence to be filed seeking permission to lead secondary evidence.
    • Proof of conditions of S.65 IEA is important and necessary for reception of secondary evidence;
    • Conditions u/s 65 IEA have to be proved by way of evidence (either your own evidence/admissions/admissions culled out in cross examination of the opposite party);
    • Such a question cannot be decided on an application;
    • The decision as to whether secondary evidence in a particular case has been rendered admissible is to be taken after an appreciation of the entire evidence on record.

For more information, students may turn to the case of : Shir Prem Chandra Jain v. Shri Sri Ram (2009) Delhi High Court

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