Whether court can grant permission to adduce secondary evidence

 

Whether court can grant permission to adduce secondary evidence without recording satisfaction about existence of document?*

The   law   discussed   above   would   show   that   in   order   that

secondary evidence is admitted, form of the secondary evidence is not

material, it could be in any form as for example copy or duplicate copy of

the copy of the original document, oral evidence or any other form and

that   three   conditions,   which   constitute   foundational   facts,   must   be

fulfilled while pressing into service the provision of Section 65(c) of the

Indian Evidence Act, namely, (a) the original document is in existence

and has been executed by its executants, (b) it has been lost or destroyed

or  cannot   be   produced   in   reasonable   time   for   any  other   reason   not

arising   from   own   default   or   neglect   of   the   party   leading   secondary

evidence, and  (c) the copy is the true copy of the original.

If these conditions or any one of them are or is not proved,

the secondary evidence cannot be admitted.

  1. In the instant case, what has been done by the impugned

orders is only grant of permission to adduce secondary evidence.   The

 

secondary evidence, which is a copy of   photostat copy of the original

Will has not been admitted in evidence so far.   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 never 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.     The

petitioners would certainly have a right to controvert the respondent

Nos.1 to 3 as well as respondent No.4 when they will say, subject to

necessary pleadings, that the original Will dated 6.11.1997 is in existence

and has been lost for the reasons not known to them.  Therefore, failure

to record a clear cut finding regarding satisfaction of the Court about

existence   or   otherwise   of   the   Will   in   question   has   not   caused   any

prejudice to the rights of the petitioners and in fact recording of such a

finding at this stage would have been premature.  After all the parties are

 

required   to   be   given   full   opportunity   for   proving   their   respective

contentions and this is what seems to be the import and effect of the

impugned   orders.     Then,   giving   of   permission   to   adduce   secondary

evidence by itself would not lead to an inference that secondary evidence

has   been   admitted.     As   stated   earlier,   for   admitting   the   secondary

evidence  the  necessary conditions  must   be  fulfilled  and  the  stage  of

fulfillment of those conditions or otherwise is yet to arrive and will arrive

when the parties stand before the Court for adducing necessary evidence.

*IN THE HIGH COURT OF JUDICATURE AT* *BOMBAY*

NAGPUR BENCH, NAGPUR

WRIT PETITION No.5984 OF 2015

Smt. Sumati @ Asha w/o. Late Anil Subhedar,

Yashodhara w/o. Late Sunil Subhedar,

Aged adult,

CORAM  :   S.B. SHUKRE, J.

DATE      :       16th SEPTEMBER, 2016.

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