The Appeal arose out of a suit for declaration filed by the Appellants. The Appellants alleged that the land owned by the Respondents was illegal. To this end, the Appellants moved an application under Secs. 65/66 of the Evidence Act, 1872 (“Act”). It sought permission of the court to produce secondary evidence, to prove a copy of the True Will. The Trial Court allowed this application. Aggrieved, the Respondents filed a civil revision before the High Court.
The High Court allowed the revision. In this case, the Will was allegedly in the possession of the revenue official. Thus, the High Court ruled that the Appellants were to issue notice Sec. 66. If there is loss or damage of the Will, Section 65 of the Evidence Act states that an application for secondary evidence is maintainable. Thereafter, the Appellants issued a notice under Sec.66. Yet, the revenue officials failed to produce the Will. Thereafter, the Appellant preferred an application under Sec. 65. The High Court and Trial Court dismissed the petition, stating that the existence of the Will remained unestablished.
Contentions
The Appellants argued that the order of the High Court suffered from patent errors of the law. They submitted that Sec 65(a) was clear that the production of the secondary evidence was maintainable after the notice under Sec. 66. Since the Appellants had served a notice under Sec. 66 and upon its failure preferred an application under Sec. 65, the said application is maintainable.
The Appellants argued that there was no statutory rule that the original must be proved at first instance, before allowing secondary evidence.
Court’s Analysis
The Court noted that where a party moves to produce secondary evidence, they must accord for the non-production of primary evidence. The Court relied on its decision in Ashok Dulichand vs. Madahavlal Dube & Anr., [1976] 1 SCR 246. Furthermore, the Court noted its observation in Rakesh Mohindra vs. Anita Beri and Ors. (2016) 16 SCC 483 as under:
“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.”
Under the Evidence Act, primary evidence establishes the facts of a case. Secondary evidence is an exception only where foundational facts have established the existence of the primary evidence. The Court then assessed the evidence brought on record by the Appellants. The Court then noted that neither revenue official denied the existence of the Will. Moreover, the scribe to the Will had deposed that he had seen the Will in question. Thus, establishing the factual foundation for making an application under Sec. 65 to produce secondary evidence to prove the Will.
Court’s Decision
The Supreme Court found that the High Court’s order suffered from material irregularity. Thereafter, the Apex Court allowed the Appeal.
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