Whether it is mandatory to file application seeking permission to lead secondary evidence?

Question therefore, would emerge as to whether a separate application would be required by a party to show existence of the circumstances enumerated under the Evidence Act. {Para 84}

85. This position precisely appears to be traded over under the decision in "Dhanpat V/s. Sheo Ram (Deceased) through Legal Representatives and Others", reported in MANU/SC/0330/2020 : (2020) 16 SCC 209, delivered by the Supreme Court observing that an application for leading secondary evidence would not be mandatory, if there is reference to foundational facts for the same in the plaint or evidence.

86. The Supreme Court, in its decision in the case of "Dhanpat", (supra) has discussed the provisions of section 65 of the Evidence Act and has considered in paragraph 22 as under,

"22. There is no requirement that an application is required to be filed in terms of Section 65(c) of the Evidence Act before the secondary evidence is led. A party to the lis may choose to file an application which is required to be considered by the trial court but if any party to the suit has laid foundation of leading of secondary evidence, either in the plaint or in evidence, the secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed."

87. In the case if the party concerned has referred to the background and the circumstances and facts necessitating leading secondary evidence, it appears that it would be able to lead secondary evidence without requiring permission from the court. Whether the facts, circumstances and background are available to the party concerned will have to be judged by the court with reference to the evidence on record in this regard. If the party fails to bring about such evidence, it is needless to say that evidence led on a document on such failed background, circumstances and facts, would not be admissible and will have to be excluded from consideration. However, if the party is able to bring about evidence with regard to circumstances, background and facts, secondary evidence of the document would be admissible and would be considered by the court. In such a case, it appears, since there is reference to facts, circumstances and background, a repeat application referring to the same would not be a necessity and the case with reference to the same will have to be proved on evidence without which secondary evidence of a document would not be admissible.

88. The Supreme Court, in paragraph 20 of the judgment in the case of "Dhanpat V/s. Sheo Ram (Deceased) through Legal Representatives and Others", reported in MANU/SC/0330/2020 : (2020) 16 SCC 209, has observed, thus,

20. This Court in Bipin Shantilal Panchal V. State of Gujarat and Another, deprecated the practice in respect of the admissibility of any material evidence, where the Court does not proceed further without passing order on such objection. It was held that all objections raised shall be decided by the Court at the final stage. The Court held as under:

"14. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed).

15. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence-taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses."

89. Several situations are likely to arise and one may be such where there are no foundational facts averred in the pleadings by a party and secondary evidence of a document is led. Ordinarily, evidence led without basis in the pleadings is to be ignored and is inadmissible. Going by present practice of giving evidence in examination-in-chief, other party may have an opportunity to object to leading of such secondary evidence and contending the same to be inadmissible.

91. But would an application be precluded referring to facts, circumstances and background, seeking permission to lead secondary evidence in respect of a document not referred to in pleadings.

92. Corollary of Dhanpat's case (supra) discernibly appears to be application would be required if foundational facts have not been referred to in any form and secondary evidence is sought to be led.

94. From foregoing discussion, it would be seen that scope of answer to question posed is whelmed by decisions of the Supreme Court in the cases of "Dhanpat" (supra) and "Jagmail Singh" (supra). Thus, emerging position is that a party may furnish secondary evidence and filing of an application seeking permission to lead secondary evidence would not be mandatory. However, an application for leading secondary evidence by a party is not precluded. Reference stands answered accordingly.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 8442 of 2019

Decided On: 22.09.2021

Shaikh Aftab Ahmed and Ors. Vs. Bhimrao and Ors.

Hon'ble Judges/Coram:

S.P. Deshmukh and Vibha Kankanwadi, JJ.

Author: S.P. Deshmukh, J.

Citation: MANU/MH/2743/2021

1. The question under present reference

"Whether any litigant can be permitted to lead secondary evidence as a matter of right without the leave of the Court and is not required to make an application to seek such permission from the Trial Court before leading secondary evidence? "

has been vexing the courts from quite some time, especially trial courts and often even appellate courts.

2. While the question had been bobbing up, on and off, a definitive edict had emerged from a decision given by a learned single judge of this court at the principal seat, twice observing that decisions, showing it may not be necessary to apply and/or seek permission of court before leading secondary evidence, in the field tend to be ignored further observing that it is the right of litigant to lead secondary evidence.

3. The learned Single Judge, in "Karthik Gangadhar Bhat V/s. Nirmala Namdeo Wagh and Others", MANU/MH/2605/2017 : AIR 2018 Bom 32 : 2018 (1) Mh.L.J. 726 referring to an order in "Indian Overseas Bank V/s. Trilok Textile Industries and Others" MANU/MH/1069/2006 : AIR 2007 Bom 24, has considered, it is settled law that no application for permission to lead secondary evidence is desirable nor is maintainable. It is always open to a party to lead secondary evidence before trial court without application and had quoted paragraph 2 from the order in "Indian Overseas Bank" (supra). He has referred to a few decisions, wherein he had followed observations in aforesaid order.

4. Buttressing his judgment, he has also referred to decision in the case of "Sumati and Others V/s. Yashodhara and Others" MANU/MH/1825/2016 : 2016 (6) ALL Mr. 507 wherein, it has been observed to the effect that, secondary evidence if is to be admitted, form of secondary evidence is not material and can be in any form and that three conditions which constitute fundamental facts, must be fulfilled while pressing into service such evidence and if any one of them is not proved, secondary evidence cannot be admitted.

5. He has observed that applications for secondary evidence are misconceived and not maintainable and that result of disallowing application is more serious because evidence in question is wholly excluded from consideration without slightest examination of proposed secondary evidence. He has discussed the issue, inter alia, to following effect in paragraphs 9 to 11-

"9. The result of such applications, which as I have noted are misconceived and not maintainable, is that exceedingly peculiar orders are passed wither allowing or disallowing the leave sought. When leave is granted, apparently secondary evidence is then led but the leave is, as we have seen completely unnecessary and a party may always place before the Trial Court secondary evidence as contemplated by the Evidence Act without such leave. The result of disallowing the application is even more serious because the evidence in question is wholly excluded from consideration without the slightest examination of the proposed secondary evidence. There is no question of examining the secondary evidence first at the stage of considering the application for leave. If the secondary evidence is sufficient to prove the document, then the document must be admitted into evidence. One of two things happen on any such application; either the secondary evidence is not considered and the document is shut out, which is wrong, or the evidence is considered twice over, once for the so called 'leave' and then again at the time of admitting the document.

10. This is no way to conduct the trial. Conceivably, it might result in a document that might otherwise be admissible and proved by secondary evidence being wholly left out only because of an order of this kind on an application that in itself is misconceived and not contemplated in law. This procedure wastes scarce judicial time and achieves nothing. When a party goes to trial, he may have direct or primary evidence of some documents and secondary evidence of others. It is for him to decide which of these he can best prove by what evidence.

11. Take the two situations under Section 65(a) and (c). In the first, notice is given to the other side to produce an original; the other side does not produce the notice. Section 66 requires such a notice, but also contains exceptions. One of these is in sub-clause (2), "when, from the nature of the case, the adverse party must know that he will be required to produce it". There are others. Therefore, it is not in every case that such a notice is compulsory. A simple example is that of a letter by a party A to party B. The original is with party B. He knows, or must know, from the nature of the case, that he will be required to produce the original. He does not. No notice is necessary and party A can straightaway produce his office copy of that letter. No 'leave or permission' is required to do this. Under section 65(c), where the original is lost, the party seeking to adduce secondary evidence must depose that the original is lost and must also depose to the other conditions set out in that sub-clause, viz., that he is not guilty of default or neglect. The section itself says that in a case under 65(c), any evidence of the contents is admissible. Again, there is simply no question of 'leave' being required."

6. Referring to his aforesaid order, almost within a week, while deciding the case of "Parasanbai Dhanraj Jain and Others V/s. Sunanda Madhukar Jadhav", MANU/MH/2644/2017 : 2018 (1) Mh.L.J. 788, he had observed, thus -

"11. I have recently set out the law on this and I will say so briefly once again: either secondary evidence is led or it is not let. Either the provisions of Section 65 are met or they are not met. No permission of a Court is required to lead evidence of any kind. No judge in the subordinate judiciary to this High Court will hereafter will insist on any such application under any circumstances whatsoever. I do not think I can put it in any clearer terms than this. Any such order is wholly illegal and liable to be set aside. A copy of this order is now to be circulated to every Civil Judge in the State or Maharashtra. To clarify: in an evidence affidavit under Order 18, a witness may well say of a given document that he cannot prove it by direct evidence and then proceed to adduce the secondary evidence in compliance with Section 65 of the Evidence Act. The trial court is to consider that evidence, viz., the reason given for not leading direct evidence and the secondary evidence led and is to then decide whether the secondary evidence led is sufficient. That is all. There is absolutely no question of an application, whether styled as an interim application or a 'MARJI' application, for 'permission' to lead secondary evidence. The Court cannot refuse that permission and it cannot insist on an application for any such permission."

7. Position appears to be that apart from the metropolis, majority of trial courts in rest of the State generally, if one may say so, prefer to err or not to err, to have applications before leading secondary evidence. The practice had assumed colour of established procedure or rather had subsumed to the order of a rule.

8. The controversy once again had popped up before learned single judge of this court, Aurangabad Bench, while dealing with rejection of an application of plaintiff to lead secondary evidence and ballooned. The learned judge after elaborate discussion, with contribution and assistance of the bar, appointing amicus curie, referring to various decisions, had found it difficult to associate with the declaration by the learned single judge at the principal seat that it is the right of litigant to lead secondary evidence and an application would not be necessary.

9. While this is so, learned single judge at Aurangabad had referred to the case of "Motiram Ramji Aadhe V/s. Yogita Motiram Aadhe" in criminal writ petition No. 132 of 2019 decided on 18th July, 2019, wherein it has been observed, thus,

"For such secondary evidence to be admitted, the party interested in adducing the secondary evidence would have to satisfy the above referred conditions by leading necessary evidence in that regard. So, the party would be required to be given an opportunity to lead necessary evidence in order to satisfy the Court about fulfilling of the necessary conditions so that the Will in question can be admitted in evidence and marked as an exhibit. That stage has not reached so far. As and when it reaches, the petitioners will have all the opportunity to prove the respondent Nos. 1 to 3 wrong or satisfy the Court that the Will in question in fact does not exist and that it has been executed by late Smt. Sushila. Therefore, learned Joint Civil Judge, Senior Division has rightly held that, by allowing the application granting permission to adduce secondary evidence, no prejudice would be caused to the rights of the petitioners."

10. The learned single judge had found that in the matter of "Prakash Gurudas Timblo V/s. Hemlatabai Ravikant Darne and Others" MANU/MH/1117/2016 : 2016 (5) Mh.L.J. 3201, it has been observed that, it is necessary for trial court to form an opinion and be satisfied of existence of conditions under section 65 of the Indian Evidence Act before leave is granted to produce documents as secondary evidence and the application filed seeking permission has to be properly dealt with and has quoted paragraph 14 from the same and then had considered "Satish Ramdaspand Bhamburkar V/s. Pramod Ramdaspant Bhamburakar", MANU/MH/2506/2017 : 2017 (6) Mh.L.J. 711 and had opined that the court recognized filing of an application for producing secondary evidence.

11. It has further been found by him that in the cases of "Dekon Enterprises V/s. Joema Monteiro and Others", MANU/MH/0261/2018 : 2018 (3) Mh.L.J. 392 and "Sandeep Komalsingh Rajput V/s. State of Maharashtra", MANU/MH/1756/2018 : 2019 (1) Mh.L.J. 300 the court had observed that an application for production of evidence has to be supported by affidavit.

12. In "Bank of India V/s. M/s. Alibhoy Mohammed and Others" MANU/MH/0408/2008 : AIR 2008 Bombay 81, it has been observed that while secondary evidence is to be led, two things are required that, there must be existence of original document and there must be evidence of its loss. No permission to lead secondary evidence was obtained by plaintiff bank. The court found that it has been observed to the effect that until and unless there was a leave sought to tender secondary evidence and leave was granted, no secondary evidence could be looked into.

13. He observed that several high courts, as referred to under its referral judgment in paragraph No. 57, were of similar view and has, thus, observed in paragraph No. 58 as under:

"It, therefore appears to me that the Law laid down by the Hon'ble Apex Court in Sital Das, Raman Catholic Mission, State of Rajasthan, J. Yashoda, H. Siddique, Kaliya and Rakesh Mohindra, (supra) and the Law laid down by this Court in Prakash, Suresh, Smt. Sumati @ Asha, Satish Bank of India and Ganpat (supra) were not cited before this court when the case of Karthik Bhat (supra) was decided on 03/11/2017 and Parasanbai (supra) was decided on 10/11/2017. Considering the view of the Hon'ble Supreme Court, the Civil Manual, the views of jurists and the risk involved in permitting secondary evidence in the face of photostat copies and absence of foundational pleadings, it would be necessary to mandate filing of a application supported with an affidavit, for permitting recording of secondary evidence."

14. Referring to submissions and citations by the parties and quoting decisions in the cases the learned single judge at Aurangabad had considered that said judgments and provisions of Civil Manual were not cited before learned single judge while "Karthik Gangadhar Bhat" and "Parasanbai Dhanraj Jain" (supra) was decided.

15. Referring as well to a few jurists and a decision reported in All England Law Reports, being not in a position to align himself with the decisions in "Karthik Gangadhar Bhat and "Parasanbai Dhanraj Jain (supra), learned single judge, after elaborate discussion, in view of emerging differences in views, under his referral judgment, had considered it prudent and appropriate to refer the matter for consideration by a larger bench. Eventually, the question, quoted above, has been referred to division bench.

16. During the course of hearing quite a few lawyers have rendered generous contributions, sparing time to assist the court.

17. Learned eminent senior advocate Late Mr. P.M. Shah had hugely shared his erudition and experience in the matter, during its initial days of hearing. He viewed the matter from a wider perspective stating that very broad propositions of law are under consideration, albeit, the issue would be required to be resolved as very frequently the courts are posed with the same. He had submitted that the Civil Manual is in nature of explanatory statement of guidelines and is not a statute, however, over a period of past six decades, the trial courts are observing the same in letter and spirit.

18. Referring to Halsbury Fourth Edition Format 17 Page 178, he had submitted that if primary evidence is available, secondary evidence of the contents of private document is inadmissible and before secondary evidence is tendered, it is usually necessary to account for absence of original document and for such a purpose proof of primary evidence being not available would be required. Referring to paragraph 9, page 10 of Halsbury (supra) a party tendering secondary evidence ought to say that he is unable to obtain best/primary evidence and that its absence is unavoidable. He submitted that it is well-known rule that no secondary evidence of document can be received until an excuse, such as the law deems sufficient, is given for non production of primary evidence. He submits that section 65 of the Indian Evidence Act, 1872 (hereinafter 'the Act'), ingraftes an exception to section 64 of the Act and for taking recourse to an exception, normally leave of the court is required.

19. Mr. Shah had submitted that Rules 14(1), (2), (3), (4) under Order VII of the Civil Procedure Code require plaintiff to file documents at the time of presentation of plaint and in case of failure of such presentation, those would not be taken in evidence without leave of the court. If document is not in possession of the plaintiff, he has to state in whose possession such a document is and if the document is not produced in accordance with rules 14(1) and (2), the plaintiff is precluded, without leave of the court, to produce it at a subsequent stage. He had relied on a land mark verdict on amendment to the Code of Civil Procedure in the case of "Salem Advocate's Bar Association, Tamil Nadu V/s. The Union of India" MANU/SC/0450/2005 : AIR 2005 SC 3353. Referring to said judgment he had submitted, it has been observed by the Supreme Court that court has inbuilt power to permit parties to produce evidence not known to them earlier or which could not be produced in spite of due diligence, on a party satisfying the court that after exercise of due diligence that evidence was not within his knowledge or could not be produced at the time of party leading evidence, the court may permit leading of such evidence at a later stage on just terms.

20. He had submitted that similarly, order VIII, Rules [1-A](1), (2), (3), (4) of the Code is to the effect that defendant ought to produce a document under said rules with written statement but if he has not produced so, such a document cannot be received in evidence, without leave of the court. He also purports to refer to Order XIII, Rules (1), (1), (2), (3), dealing with producing documents.

21. He had went on submitting, it is a settled practice in trial courts, at any stage of production of document, an application is required to be moved and when an application is filed, the court in its discretion, calls for response from the other side with a view to pass an order. Such a practice is being adopted from a long time even for leading secondary evidence and it would not be necessary to depart from such a settled procedure only for the reasons that it relates adducing secondary evidence.

22. He had also submitted that an application would be necessary as it will give full details or particulars necessary to attract provisions of section 65 of the Act and would ensure observance of principles of natural justice and fair play. It gives adequate opportunity to the other side to scrutinize correctness and authenticity or otherwise of the reason given in the application. In case production of a document is allowed directly, the other side would be deprived of such opportunity. He had further submitted that a party would be estopped from deviating from the reasons given in the application at any subsequent stage. He had further submitted that it also would facilitate proceedings in higher court to quickly come to the precise point with aid of identification of relevant record.

23. He had submitted that in the absence of order from the court granting or rejecting leave, a trial lawyer is placed on a quandary and speculative reasoning, whether to cross-examine a witness, with reference to secondary evidence or not if the leave is rejected by the court, cross examination on the point would be avoided and it would save valuable time of the court. Moreover, because a document is referred to during cross examination, at times, only on that point, the document is marked as exhibit. He further submitted that in the event findings recorded by trial court on this score are reversed by appellate court, calling for the remand of the whole case, such exercise would be avoidable.

24. Besides, he submitted that passing an order on such an application granting or rejecting the leave could be challenged at that stage and in such a case, it would not be necessary to take recourse to remedy of filing substantive appeal, which would also save payment of court fee. He also submitted that granting or rejecting leave before the final decision gives opportunity to parties to take recourse to alternative measures and to supply deficiency during the course of trial. He submits that, however, reasons are assigned in final judgment, parties are taken by surprise and are deprived to an opportunity to take corrective measures.

25. The learned senior advocate had referred to a decision of Punjab and Haryana High Court in the case of "Gurdial Kaur V/s. Registrar Co-operative Society, Punjab, Chandigarh and Others" reported in MANU/PH/0188/1999 : AIR 2000 Punjab and Haryana 82, wherein the high court had considered that trial court should not have allowed permission to lead secondary evidence of the receipts without proof of receipts having been executed by Gurdial Kaur and that there had been no mention of receipts in the written statement.

26. He referred to and relied on a judgment in the case of "State of Rajasthan and Others V/s. Khemraj and Others" reported in MANU/SC/0857/2000 : (2000) 9 SCC 241, wherein the appellants (before the Supreme Court) had filed an application producing an attested copy and a map to lead secondary evidence in respect of the same. Trial court had rejected the application being not supported by affidavit and the averments in the same being vague. The high court also endorsed said decision. The Supreme Court, however, had set aside order, although it did not find fault with orders passed by the courts, however, had allowed, in the interest of justice, to make appropriate application to lead secondary evidence.

27. He had submitted that in the case of "Bank of Baroda, Bombay V/s. Shree Moti Industries, Bombay and Others" MANU/MH/1237/2008 : 2009 (1) Mh.L.J. 282, in paragraphs No. 26 to 28 it has been considered that section 65 of the Act enumerates seven exceptional circumstances in which secondary evidence is admissible. It is a evidence of contents, which cannot be admitted without production of document in such manner as provided for in said section. He particularly emphasized paragraph 27, wherein it has been categorically observed as under:

"27. The prior permission of the Court is required to be taken for producing secondary evidence of the documents on the ground that original documents were lost. To sum up, when anybody wants to lead secondary evidence, two things are required to be proved: there must be evidence of the existence of the original documents and there must be evidence of their loss."

He also purported to draw attention to that the court had considered that no prior permission to lead secondary evidence had been obtained by the bank and as such, the documents of which secondary evidence was sought to be allowed, could not be read in evidence and were excluded from consideration.

28. He had submitted that an order by learned single judge in "Indian Overseas Bank V/s. M/s. Trioka Textile Industries and Others" MANU/MH/1069/2006 : AIR 2007 Bombay 24 will have to be appreciated in the context of facts of that case and may not have general application.

29. Mr. Shreekant V. Adwant-learned Amicus Curiae has put in tremendous efforts in matter and his sincerity and assistance is appreciated.

30. Mr. Adwant, has taken us through Sections 61 to 67 of the Evidence Act, 1872 and purports to analyze the provisions. He submits that section 61 of the Evidence Act stipulates that proof of contents of documents may be by primary or secondary evidence. Section 62 is with respect to primary evidence and Section 63 is about secondary evidence.

31. Mr. Adwant submits that the Evidence Act does not give an option to a party to prove contents of documents, either by primary or by secondary evidence. The word "primary" and "secondary" connote their value in the eye of law.

32. He submits that serial order of provisions communicates that former enjoys supremacy over the latter when phrase "primary evidence" precedes phrase "secondary evidence". He goes on to submit that primary evidence is a rule and secondary evidence is an exception. A rule can be proved by an exception but an exception would not partake character of rule.

33. He submits that secondary evidence cannot be placed on a par with primary evidence, as it would cease to be secondary extinguishing line of demarcation. He submits that on the whole, it would emerge secondary evidence would always inferior to primary evidence.

34. He submits, definition of secondary evidence in Section 63 being an inclusive one, generally its scope is not limited to clauses therein. He purports to contend that while the provision contains the words "means" and "includes" their usage in the provision reflects on intention of legislature is to supply unrestricted meaning to the term and should be taken into account in that spirit.

35. Drawing attention to provisions of Section 65 of the Act, he submits that secondary evidence can be adduced only under the conditions contained in the provision. As such, according to him, this shows a party is obliged to satisfy trial court that it is not in position to produce primary evidence despite endeavour and it is only when the court is satisfied about bonafides of party and genuineness of inability to produce primary evidence, the court would allow adducing secondary evidence.

36. He goes on to submit that letting a party to discharge burden of proof by secondary evidence by itself would be festered with perils, as it would not be known whether the document used by way of secondary evidence is genuine or fabricated or otherwise.

37. He submits that sections 63 and 65 of the Act obligate to lay foundation before adducing secondary evidence. Unless a case falls within any one of the instances in section 65, secondary evidence is not admissible.

38. Mr. Adwant, submits that Section 65 of the Act enumerates circumstances in which secondary evidence may be given. Usage of word "may" shows that only if primary evidence cannot be adduced that the production of secondary evidence may have to be considered not otherwise. He, therefore, submits that it naturally follows that a party would have to plead and make out the case showing to be covered by circumstances given in Section 65 and would have to be proved by adducing evidence. He submits that it implies a writing about pre-conditions for the satisfaction of the court and have to be proved before leading secondary evidence.

39. Mr. Adwant purports to draw attention to Commercial Courts Act, 2015 contending that Chapter VI thereof deals with amendments to provisions of Code of Civil Procedure and to that commercial court is to follow provisions of the Code of Civil Procedure as amended by the Act of 2015 in trial of a suit. He submits, Schedule appended to section 16 pertaining to Order XI, shows that a list of documents and photo copies of documents in power, possession, control and custody of plaintiff is supposed to be filed along with the plaint, along with other particulars referred to. It is only in cases of urgent filing, the plaintiff may seek leave to rely on additional documents, which are with the leave of the court required to be filed within thirty days of filing suit. The plaintiff is not allowed to rely on documents which are not disclosed in the plaint, save and except by the leave of the court. He submits that undercurrent of aforesaid is, foundation will have to be laid along with plaint and if not, documents can be taken in to consideration only with leave of the court and not otherwise. He submits, this indicates that a leave/permission would be necessary, which normally would be obtained by a request in the form of an application. He also purports to refer to section 90 of the Evidence Act to contend that even if execution of thirty year old document is presumed to be genuine, the contents are required to be proved independently. According to learned advocate, all aforesaid goads to that an application seeking permission to lead secondary evidence would be proper and appropriate.

40. In support of his submissions, analyzing secondary evidence, he cites a few decisions of the Supreme Court, viz.: Smt. J. Yashoda V/s. Smt. K. Shobha, MANU/SC/7314/2007 : (2007) 5 SCC 730; Ashok Dulichand V/s. Madahavlal Dube and Another, MANU/SC/0278/1975 : (1976) 1 SCR 246 and "H. Siddiqui (Dead) by Lrs. V/s. A. Ramalingam, MANU/SC/0174/2011 : (2011) 4 SCC 240.

41. Mr. Adwant, submits, Section 58 of the Evidence Act reflects on that a document which has been admitted or which has not been specifically denied by opposite party, need not be proved, yet its a rule of prudence and is subject to satisfaction of the court. Admission of a document under Section 18 of the Evidence Act by opposite party may not necessarily dispense with proof of truthfulness of its contents, party may have to prove the same in accordance with law. In order to support aforesaid submission, a decision of Delhi High Court in the matter of "Sudhir Engg. V/s. Nitco Roadways Ltd" MANU/DE/0414/1995 : 1995 IIAD Delhi 189, has been referred to, wherein according to him, it has been considered that mere admission of document in evidence does not amount to its proof. He further submits that it has been held a document filed by a party goes through three stages before it is held to be 'proved' or 'disproved' or 'not proved' (i) filing in the Court; (ii) tendering or producing the document in evidence by party and its admission by court; (iii) Application of mind to the document by court and to hold the same to be 'proved', 'disapproved' or 'not proved'.

42. Decision on objection by the court would curtail and save going on record and considering inadmissible evidence. A case reported in MANU/SC/0798/2003 : AIR 2003 SC 4558 "R.V.E. Venkatachala Gounder V/s. A.V. and V.P. Temple" can lead with advantage that an objection to admissibility of the document should be raised before endorsement is made and the court is obliged to form its opinion on the question of its admissibility and express the same on which it is dependent and the document is being endorsed as admitted or not admitted in evidence.

43. He submits that secondary evidence of the contents of an inadmissible document cannot be given and thus, there can be no reception of secondary evidence of an unregistered document which under law is compulsorily to be registered. So also is the case of a document, where stamp duty is not paid. In support of aforesaid submissions, he relies on the citations viz.; "Om Aggarwal v/s. Prakash Chand Sharma" MANU/SC/7993/2007 : (2007) 8 SCC 514; "Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engg. Ltd.," MANU/SC/0511/2019 : (2019) 9 SCC 209 and "Pradeep Shyamrao Kakirwar V/s. Dr. Seema Arun Mankar and Others" MANU/MH/0544/2020 : (2021) 1 Mh. L. J. 322.

He refers to "Roman Catholic Mission Vs. State of Madras", reported in MANU/SC/0253/1966 : AIR 1966 SC 1457 and relies on paragraph 8 therein. Excerpt from the same reads, thus:-

"8..................... These documents undoubtedly would have thrown light upon the matter but they were not admissible because they were only copies. The originals were not produced at any time nor was any foundation laid for the establishment of the right to give secondary evidence. The High Court rejected them and it was plainly right in so deciding. If we leave these documents out of consideration, the other documents do not show that the inam comprised the kudiwaram also .........."

44. He refers to citation in the case of "State of Rajasthan and others Vs. Khemraj and others", reported in MANU/SC/0857/2000 : (2000) 9 SCC 241, stating, therein it has been concluded that application seeking permission to lead secondary evidence is necessary along with affidavit, to contend that the decision is suggestive of an application seeking permission to lead secondary evidence. He submits that considering the ruling as laid down by the Supreme Court, it is necessary for parties and courts to consider foundational/jurisdictional and adjudicating facts whilst seeking and allowing to lead secondary evidence.

45. Learned counsel submits that he is also aware of recent Supreme Court decisions in the case of (i) "Dhanpat V/s. Sheo Ram (Deceased)", reported in MANU/SC/0330/2020 : (2020) 16 SCC 209 and (ii) "Jagmail Singh and another Vs. Karamjit Singh and others", reported in MANU/SC/0444/2020 : (2020) 5 SCC 178 in which the Supreme court has stated that permission to lead secondary evidence is not mandatory, if there is sufficient foundation in pleadings and/or evidence.

46. He immediately, however, purports to add that aforesaid decisions appear to have been rendered without reference to relevant earlier decisions and observations are with reference to facts in those cases.

47. Mr. Adwant, learned advocate has referred to Chapter VI, set out in Civil Manual issued by High Court of Judicature, Appellate Side Bombay and purports to point out paragraph 88 submitting, from the same it would be apparent that the court has power to order any fact to be proved by affidavit and such a power can well be utilized to secure formal proof of facts and whenever fact is allowed to be proved by affidavit, an order should invariably be passed by court. He refers to Chapter VII of the Civil Manual-Incidental Proceedings, refers to paragraph 93, to contend that general rule followed is that applications materially affecting conduct of a suit or the legal position or rights of either party should be received only in writing. He submits that it is suggestive of that when an action of a party is to impact the suit materially, legal position or rights of either party can be only through an application in writing. He also refers to paragraph 230 of Chapter IX to state, it prescribes that all preliminary matters should be disposed of before the date fixed for the trial, which would include proof of facts by affidavit. The issue and return of commissions or examination of witness etc. and all the matters connected with discovery and inspection of documents. He, thus, submits that it is expected that all the stages of production of documents are expected to be completed before the trial. He submits, coupled with the decisions referred to above, the situation emerges that an application is endearingly desirable and be considered as mandatorily necessary in order to avoid inconvenience to the parties.

48. Mr. Adwant, learned counsel next refers to 68th to 69th and 177th and 185th reports of the Law Commission of India to contend that the suggestions and recommendations of Law Commission in the reports are to the effect that it is the power of the Court to decide the issue as what is meant by secondary evidence as defined under Section 63 and whether it should be allowed or refused looking into the circumstances contemplated by Section 65 of the Act. According to him, this would lead to an inference that a party cannot have unbridled right to lead secondary evidence has its pleasure and it would be subject to leave, if any, granted by court hearing the matter. He submits that it follows that all these things can be placed on record and brought to the notice of court for its assessment and decision thereon only by way of an application and not otherwise.

49. Learned counsel further refers to commentaries by Eminent Jurists viz.; A. Wigmore on evidence (First Indian Reprint, 2008), B. Sarkar on evidence-13th Edition and D. Phison's Evidence-4th Edition in support of his submission contending that, juristic writings and professional opinions converge on that secondary evidence can be led by a party upon complying with mandate of law and the court adhering to principles of evidence jurisprudence. Test of sufficiency of the facts determining necessity to lead secondary evidence shall precede leading to secondary evidence and are required to be independently established which require a proper application.

50. Referring to decisions in "Sital Das V/s. Sant Ram and Others" MANU/SC/0156/1954 : AIR 1954 SC 606; "State of Rajasthan and others Vs. Khemraj and others", MANU/SC/0857/2000 : (2000) 9 SCC 241; "Prakash Gurudas Vs. Hemlatabai Ravikant", MANU/MH/1117/2016 : 2016 (5) Mah. L.J. Page 320, Paras 12 and 14; "Suresh Shrikrishna Vs. Parag Padmakar", MANU/MH/2556/2015 : 2016 (2) Mah. L.J. Page 437, Paras 2 and 4; "Smt. Sumati Vs. Yashodhara", Paras 10, 11, 14 and 17; "Satish Ramdaspant Vs. Pramod Ramdaspant", MANU/MH/2506/2017 : 2017 (6) Mah. L.J. Page 711, Paras 3 and 4; "E. Decon Enterprises Vs. Joema Monteiro", MANU/MH/0261/2018 : 2018 (3) Mah. L.J. Page 392, Paras 4 and 7; "Sandip Komalsingh Vs. State of Maharashtra", MANU/MH/1756/2018 : 2019 (1) Mah. L.J. Page 300, Paras 2, 5, 8 and 9; "Bank of India Vs. Alibhoy Mohammed", MANU/MH/0408/2008 : AIR 2008 Bom Page 81, Paras 24, 27, 28 and 29 and "Ganpat Pandurang Vs. Nivrutti Pandurang", MANU/MH/0803/2008 : 2008 (5) Mah. L.J. Page 153, Para 13 learned counsel submits that precedents and exposition thereunder show that laying foundation for secondary evidence by an application is a rule and departing from it, is not permissible.

51. He also refers to and relies on, for aforesaid purpose, following decisions of Andhra Pradesh High Court, Madhya Pradesh High Court and Madras High Court viz.; Namburu Bulli Veera Vs. V. Venkata Satyanarayana, MANU/AP/0098/1998 : 1998 (1) A.P.L.J. Page 57, Para 5; K. Krishna Appala Naidu Vs. B. Sohanlal and others, MANU/AP/0293/2004 : AIR 2004 AP Page 439, Page 11 and 12; K. Ravikumar Bajpai Vs. Shakuntala Devi, MANU/MP/0923/2016 : 2017 (1) M.P.L.J. Page 692, Paras 11 to 14, 23 and 24; Virendra Singh Vs. Deena and others, Page, Paras 1, 3, 5 and 7; Arulmighu Vs. Haridas, reported in MANU/TN/0065/2000 : 2000 (1) CTC Page 534, Para 4; Rathinambal Vs. P. Rajasekaran, reported in MANU/TN/8150/2006 : 2006 (2) CTS Page 177, Paras 4 and 5; FCI Vs. K. Duraipandian, reported in MANU/TN/1626/1997 : 1997 (2) Law Weekly Page 128, Paras 16 and 17; and P. Bajaj Auto Ltd. Vs. TVS Motor Company, MANU/TN/0453/2016 : 2016 (4) Law Weekly Page 865, Paras 28, 32 and 35.

52. He submits that aforesaid judicial pronouncements find that application by a party for adducing secondary evidence would be mandatory.

53. Learned counsel Mr. Ameya Sabnis gets into fray tendering valuable assistance opposing Mr. Shah and Mr. Adwant contending that secondary evidence can be led by a party as a matter of the right without leave of the court and is not required to file any application and/or obtain permission. He submits that the Evidence Act is a part of procedural law and when the provision of law is plain and unambiguous, the Court has to give effect to the same irrespective of consequence. No addition or modification in the said provision is permissible. He submits that when Section 65 of the Evidence Act allows secondary evidence to be given in the circumstances mentioned therein, it does not contemplate filing of an application or seeking prior permission of the court for leading secondary evidence. To buttress his aforesaid submissions, he purports to contend that whenever legislature has intended to have an application for any purpose, it has specifically done so and in specific words viz.; "The court may on an application made in that behalf". To illustrate the same, he refers to Sections 126(2) and 340 the Criminal Procedure Code, 1973 and Order XXII, Rules 3 and 4 of the Code of Civil Procedure. He submits that a party to a proceeding, will have to lead evidence to show existence of a circumstances enumerated in Section 65 of the Evidence Act/like original is in possession of someone else or existence, execution-contents admitted, original lost, original not movable etc. Then the party will have to lead evidence in proof of document as secondary evidence to prove the circumstances to make the same admissible. It is for the court to decide as to whether such an evidence is admissible and, if any, then to find out whether secondary evidence establishes the fact intended to be proved. He submits that practice of filing of application seeking permission to lead secondary evidence, wherein the courts are required to decide factual controversies, is as good as mini trial within the trial. Such mini trials are generally hotly contested leading to delay in decisions in the matter. He concluded his submissions contending that a litigant can be permitted to lead secondary evidence as a matter of right in tune with the provisions of the Evidence Act without leave of the court and is not required to seek such permission from trial court. He, thus, submits that secondary evidence can be led as a matter of right by a party.

54. To buttress his submissions, he purports to refer to and rely on a few decisions viz.; MANU/SC/0094/1962 : AIR 1962 SC 1052-to say that law of evidence is part of procedural law; "Maharaj Kumar Chand V/s. Jodhpur Film Vitrak Sahakari Samiti Ltd."; to contend that Evidence Act does not envisage an application for permission of the court to lead secondary evidence and further purports to point out, it has been referred to that issue of right to lead secondary evidence should not be confused with proving the document itself and that when secondary evidence is led, it is open to the other side to cross-examine the person tendering secondary evidence to show that conditions for secondary evidence do not exist and it is for the court to assess the evidence and give decision thereon; "Bipin Shantilal Panchal Vs. State of Gujarat and another", reported in MANU/SC/1529/2001 : (2001) 3 SCC.-Objection to admissibility of evidence is to be decided at the stage of final hearing; "Commissioner of Customs (imports), Mumbai Vs. Dilip Kumar And Company And Others", reported in MANU/SC/0789/2018 : (2018) 9 SCC 1; "Prem Chandra Jain (Deceased) represented by Lr's Shri Bharat Bhushan Jain", "Advocate and Others Vs. Sri Ram (Deceased) Represented by Lr's Shri Sunil Kumar Arora and Others", reported in MANU/DE/2860/2009 : 2009 (113) DRJ 617-to submit that neither Code of Civil Procedure nor the Evidence Act provide for application which according to him shows that neither Evidence Act nor Code of Civil Procedure nor any other rule or regulations or statutes require filing of application seeking permission to lead secondary evidence and same serves no purpose except delay in the proceedings. Factual controversy cannot be adjudicated on applications. Parties seeking to prove document by secondary evidence have to lead evidence which is admissible and it has to be decided at the stage of final disposal of the suit, where the case for leading evidence can be made out and a document stands proved by secondary evidence. In "Sanyogta Prakash Vs. Dhira Bala Malhotra and others", reported in MANU/DE/3511/2009 : 2010 (115) DRJ 109, it appears to have been held that court cannot merely on an application permit or decline secondary evidence. He also purports to refer to that decision in Sanyogta Prakash's case (supra) remained undisturbed before the Supreme Court in Special Leave to Appeal (Civil) No. 19721 of 2010. He additionally contends that the practice of making applications and passing orders/inconvenience or hardship are no consideration and if that be so, it is a matter for the legislature to take appropriate steps and not the court to legislate the same.

55. Mr. Ajit Gholap, learned Advocate has also participated associating himself with the submissions in support of the stream that no application is required for leading secondary evidence.

56. Mr. Gholap contends that making an application would be vesting the court with a power and conferring discretion to pass orders, to entertain and grant or reject the application.

57. He submits that when it is a matter of right, it is the option of a party to exercise and utilize the same. He submits that there are several instances, several provisions in the statutes, where applications are required and applications are specifically prescribed for the same viz.; application for condonation of delay application for interim relief; application for report of court commissioner. In contra distinction, he submits that for filing written statement, it does not require any application and it is parties' choice to file it or not to file it. Making an application for the same is unnecessary and avoidable.

58. Similarly, insofar as evidence is concerned, adducing the same is for the parties and there can be no compulsion by the court to lead it or for that matter of the manner of leading the same. He further purports to emphasize that application would not be necessary, contending it is for a party to discharge burden and if a party chooses not to lead evidence, in such a case, consequence of not leading evidence would follow. He contends that a court cannot compel a party to lead evidence and much less either primary or secondary. He submits that documentary evidence can be proved by either primary or secondary and after leading such evidence, the Court's role would intervene. He submits that in the circumstances, where a party would not be compelled to adduce primary evidence then the party may adduce secondary evidence. He submits that despite primary evidence being produced, party chooses to lead secondary evidence then it would run into risk of discharging its burden and at the stage of conclusion of the matter, it is for the Court to proceed to give decision thereon holding that secondary evidence would not be admission. Thus, the burden would be on the party to adduce evidence to satisfy the Court as to how the secondary evidence is admissible and that he is obliged to bring on record and prove the circumstances warranting secondary evidence.

59. Mr. Gholap then refers to several instances viz. transfer, death of party, etc. He submits that if application is rejected party is prevented from adducing evidence and at the appellate stage, if it is found that party has been deprived of secondary evidence such an eventuality can be avoided by letting party give such an evidence and its admissibly can be decided by the Court either to admit or reject the same in final decision. He submits that this would reduce the possibility of lengthening the litigation on the ground of non-availability of evidence, since the evidence would be assessed and its admissibility would be the matter.

60. Learned advocates Mr. Pratap Mandlik and Mr. Sushant Dixit had also advanced submissions, referring to pros and cons of making application and not making an application, providing valuable assistance.

61. Learned advocate Mr. Ajit Kasliwal, who had appeared for the petitioners in the writ petition, with great deal of zeal submits that stock of his submissions had been taken by learned single judge in the referring judgment.

62. He has referred to that the learned single judge at Principal seat has given exposition over the position with quite some amplification to the effect that a witness may well say of a given document that he cannot prove it by direct evidence and then proceed to adduce secondary evidence in compliance of section 65 of the Evidence Act and the trial court is to consider the reason given for not leading direct evidence and for giving secondary evidence and then to decide as to whether secondary evidence led is sufficient. In the situation there is absolutely no application necessary for permission to lead secondary evidence and the court cannot refuse permission nor can it insist on an application. He then purports to refer to a clutch of cases wherein applications for secondary evidence had been rejected by trial courts and were allowed by the high court viz.; "Kirtikumar Mansukhlal Badani V/s. Shantabai Bhairulal Sharma" Lex (BOM) 2015 4 424; "Shri Suresh s/o. Shrikrishna Pandharipande V/s. Parag s/o. Padmakar Pandharipande" MANU/MH/2556/2015 : 2016 (2) ALL Mr. 563; "Anil Balasaheb Murde V/s. Adinath Trimbak Bodkhe" in Criminal Application No. 3400 of 2006 dated 4th December, 2006 at Aurangabad; "Indian Overseas Bank V/s. M/s. Trioka Textile Industries and Others" MANU/MH/1069/2006 : AIR 2008 Bombay 24 and "Motiram Ramji Aadhe V/s. Yogita Motiram Aadhe" LEX (BOM) 2019 7 98.

63. He also fairly refers to "Madanlal Virbhanji Madan and Others V/s. Ramrao Mahadeorao Gomase" MANU/MH/2610/2014 : 2014 Legal Eagle 1198 wherein it has been referred to the effect that the Evidence Act does not contemplate any specific requirement of filing application for leading secondary evidence, but it is always better to have an application with properly affirmed pleadings.

64. He also refers to a clutch of decisions of other high courts viz.: MANU/AP/0028/2009 : AIR 2009 (NOC) 1574 (AP) "M. Aruna Mohan Ram V/s. Trilok Kumar Sanghi", to submit that merits, demerits and genuineness of a document can be gone into at appropriate stage; MANU/KA/0530/2005 : AIR 2006 Karnataka 95 "Gafarsing alias Sati Gafar Sab V/s. Ameer Ahmad" to state that a document cannot be refused to be received in secondary evidence on the ground of non disclosure of source and authority. He also refers to MANU/RH/0548/2005 : AIR 2006 Rajasthan 91 "Malkit Singh V/s. The Special Court N.D.P.S." to emphasise that though admission of a document would not absolve a party from proving facts of the document, however, no application for secondary evidence would be necessary.

65. He candidly submits that though application was perceived to be imperative, the emerging position from recent decision of the Supreme Court in "Dhanpat's" case (supra), shall douse the flaring controversy and put the matter to rest, as necessity of making an application stands ruled out with said verdict. He submits, it has been categorically observed that there is no requirement of an application for permission to lead secondary evidence and a party can go on giving secondary evidence as a matter of right.

66. We would like to make a special mention and record our appreciation of efforts taken by learned advocates while responding to the referral. We admire the assistance rendered by them. We are also cognizant of that law in this respect would keep on evolving.

67. It appears that the position has been viewed by the courts in wide range of perspectives. Some courts have gone by the circumstances and a few others were influenced by the effect of letting in or not letting in secondary evidence by a party. A few also had been concerned with the stretching or rather overstretching stages and/or cumbersome, time consuming repetition of procedure of taking evidence, considering delays are inevitable and quite a few had considered delays are avoidable. While quite some courts have preferred to go as per the letter in the statute book. Various decisions, in the circumstances, if one may say so, had been forming a virtual collage.

68. Emerging controversial situation in the field had been perplexing trial courts at the primary level and to quite some extent even appellate courts as to whether there should be insistence upon or should there be no insistence for an application before letting in or refusing secondary evidence.

69. Part II, 'on proof', of the Evidence Act comprises chapters, III, IV, V and VI. Chapter III deals with "facts which need not be proved", IV with "oral evidence", V with "documentary evidence" and chapter VI deals with "exclusion of oral by documentary evidence".

70. Provisions of chapter V of the Act, notably, sections 61 to 66 would be relevant to be referred to and taken into account.

71. Section 61 of the Act, states that contents of documents may be proved either by primary or by secondary evidence.

72. Section 62 of the Act, about primary evidence, refers to that document itself, produced for inspection of the court, would be primary evidence and where document is executed in counterpart, each counterpart being executed by one or some of the parties only, would be primary evidence against the parties executing it. It explains that documents created by one uniform process, printing, lithography or photography, each is primary evidence of the contents of the rest, further clarifying that, however, copies of a common original, would not be primary evidence of the contents of the original.

73. Section 63 of the Act, which deals with evidence which is not primary, while referring to it as secondary, purports to refer to as to what may assume shape of such evidence. It refers to that evidence means and includes following categories viz.;

(1) Certified copies

(2) Copies of original by mechanical processes ensuring accuracy and copies compared with such copies;

(3) Copies of original;

(4) Counterparts of documents as against the parties who did not execute it;

(5) Oral accounts of the contents of a document given by a person who has seen it.

74. As such, it appears, to prove existence of the document, is a pre-requisite rather is sine qua non for secondary evidence.

75. Section 64 of the Act in said chapter stipulates that documents are to be proved by primary evidence except in the cases thereafter mentioned.

76. Section 65 of the Act, states that secondary evidence may be given of the existence, condition or contents of a document. It purports to elucidate, considerations under which secondary evidence would be required. It provides for and enumerates circumstances under which a party may be able to lead secondary evidence. Clause "a" thereof provides for that when a document is not in possession or power of the party giving evidence or for that matter is in possession of person against whom the document is sought to be proved, the party intending to give evidence would have to call upon the other side to produce the original document by a notice and if such a party is not willing to or does not produce/place on record before the court or in other circumstances as referred to thereunder, may give secondary evidence.

77. Section 66 of chapter V of the Act, sets out rule, putting restraint on the party to give secondary evidence in the case of clause "a", referred to under section 65 of the Act, without notice to produce the document is given by such party before proceeding to give evidence and also gives discretion to court to dispense with such a notice to produce. It also, under proviso, sets out instances in which notice would not be required.

78. Provisions purport to define primary and secondary evidence. Legislative scheme under the Act seems to be that contents of documents have to be proved by primary evidence and by secondary evidence only in the conditions and circumstances referred to in the statute.

79. From provisions under chapter V of the Act, it surfaces that primary evidence gets precedence over secondary and that secondary evidence is not an option to obligation to tender primary evidence.

80. Legislative scheme is accommodative of that where there would be occasions for litigants which are likely to preempt his case for want of availability of primary evidence, although production of primary evidence is not within his means nor has capacity to produce the same and is out of his reach and power. An opening is let to such litigant to give evidence in alternate form pursuant to section 63 of the Act. In such a case, the scheme appears to make available an avenue to give evidence about a document, to say about its existence, condition and contents to save truncation of his case over its non-production.

81. Pursuant to provisions of sections 61 to 63 of the Act, contents of the documents are to be proved by production of document for inspection of court, yet truth of the contents of the document has to be established and cannot be proved merely by producing a document; when original document is in existence but not produced, secondary evidence by production of copies is inadmissible; section 65 creates an avenue for a party which inspite of its best efforts is unable to place before the court primary evidence of a document for reasons or circumstances beyond its control. Thus, a secondary evidence is available to be considered only when the circumstances justify its leading.

82. The circumstances referred to under section 65 of the Act appear to circumscribe letting secondary evidence. It is, inter alia, in the absence or incapacity of a party giving evidence to tender primary evidence in the circumstances referred to under the provisions of section 65 of the Evidence Act, secondary evidence in respect of document would occasion and a right would accrue to give secondary evidence. In a way it can be said, if a party were to lead secondary evidence, it can do so only in the cases or circumstances referred to under clauses "a" to "g" of section 65 of the Act.

83. The scheme of the Evidence Act as contained in chapter V does not per se speak about making an application seeking permission to lead secondary evidence.

84. Question therefore, would emerge as to whether a separate application would be required by a party to show existence of the circumstances enumerated under the Evidence Act.

86. The Supreme Court, in its decision in the case of "Dhanpat", (supra) has discussed the provisions of section 65 of the Evidence Act and has considered in paragraph 22 as under,

90. The matter would also have to be viewed from an angle as to whether it should be left to verification of requirement of law by the court and to the court's discretion and powers, whether to allow or not to allow leading of secondary evidence when legislation specifically lets in secondary evidence of document in the circumstances referred to in section 65 of the Act. Verification of facts, circumstances and legal requirements indeed is necessary on all occasions whether permission is sought or not, in order to consider secondary evidence.

91. But would an application be precluded referring to facts, circumstances and background, seeking permission to lead secondary evidence in respect of a document not referred to in pleadings.

92. Corollary of Dhanpat's case (supra) discernibly appears to be application would be required if foundational facts have not been referred to in any form and secondary evidence is sought to be led.

93. The Supreme Court has also, in the case of "Jagmail Singh and Another V/s. Karamjit Singh and Others" reported in MANU/SC/0444/2020 : (2020) 5 SCC 178 has considered in paragraphs No. 11, 12, 13, 17 and 19, as under-

"11. 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.

12. The issue arising out of somewhat similar facts and circumstances has been considered by this Court in Ashok Dulichand Vs. Madahavlal Dube and Anr.1 and it was held as under:-

"7. ..... According to Clause (a) of Section 65 of Indian Evidence Act, Secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved or of any person out of reach of, or not subject to, the process of the Court of any person legally bound to produce it and when, after the notice mentioned in Section 66 such person does not produce it. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given."

13. In the matter of Rakesh Mohindra Vs. Anita Beri and Ors. this Court has observed as under:-

'15. The preconditions for leading secondary evidence are that such original documents could not be produced by the party relying upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the non-production of primary evidence. Unless, it is established that the original documents is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot accepted."'

17. Needless to observe 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.

19. The appellants would be entitled to lead secondary evidence in respect of the Will in question. It is, however, clarified that 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."

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