Himachal Pradesh High Court Quashes Trial Court Order Allowing Secondary Evidence

Order permitting secondary evidence without meeting statutory requirements under Section 65 of the Indian Evidence Act, 1872 overturned

In a significant ruling, the Himachal Pradesh High Court has set aside an order passed by the Civil Judge (Senior Division), Court No.1, Ghumarwin, District Bilaspur, which permitted the leading of secondary evidence under Section 65 of the Indian Evidence Act, 1872. The judgment delivered by Mr. Ajay Mohan Goel, J., underscores the importance of adhering strictly to statutory provisions before allowing secondary evidence.

The dispute revolves around a civil suit filed by Amar Nath against Mansha Ram concerning the inheritance of property based on the alleged last Will of Smt. Har Dei, dated 12.12.2009. Amar Nath claimed joint ownership of the property with defendant No.1 and sought to prove the Will through secondary evidence, asserting that the original document was misplaced by the defendant.

The trial court had earlier allowed Amar Nath's application to lead secondary evidence, a decision challenged by Mansha Ram on grounds of procedural impropriety. He argued that the application failed to meet the statutory criteria under Section 65 of the Evidence Act, which governs the circumstances under which secondary evidence can be admitted.

The High Court, upon reviewing the case, found that the trial court's order was perverse and lacked judicial rigor. Justice Goel noted that secondary evidence is not a matter of judicial discretion but must strictly conform to the parameters set out in Section 65. The judgment pointed out that the allegations of the original Will being misplaced did not suffice as evidence of loss or destruction, nor was there any admission by the defendant of the existence of the Will, which are necessary conditions under Section 65.

Moreover, the High Court observed that the trial court had ignored crucial evidence, such as an inquiry report dismissing claims of the Will being submitted for registration. The court emphasized that granting permission to lead secondary evidence without satisfying legal prerequisites undermines judicial integrity and procedural fairness.

In conclusion, the High Court quashed the trial court's order dated 04.10.2017, directing the parties to appear before the trial court on 17.11.2025 for further proceedings. This ruling reinforces the necessity for courts to diligently apply statutory requirements before admitting secondary evidence in civil litigation.

Bottom Line:

Application for leading secondary evidence under Section 65 of the Indian Evidence Act can only be allowed if the parameters laid out under Section 65 are met - Allegations and unsubstantiated claims regarding the loss of an original document cannot suffice to meet the conditions prescribed under Section 65.

Statutory provision(s): Section 65 of the Indian Evidence Act, 1872

Shri Mansha Ram v. Shri Amar Nath (since deceased), (Himachal Pradesh) : Law Finder Doc Id # 2802613