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Necessity For Permission To Lead Secondary Evidence

Every Case, whether civil or criminal, depends upon the evidence lead in the case. It is the quality of evidence that decides the fate of the case. The Quantity of evidence is immaterial to decide the fate of the case. The study of Indian Evidence Act,1872 is most essential for a practicing advocate in the civil courts. Unless and until an advocate is not conversant and does not possess the knowledge of the act, he is in a disadvantageous position. It is settled principle of law that no section in any act can be read in isolation. Harmonious interpretation of all the sections will help an advocate/court to arrive at a correct conclusion. Reading of any section in isolation will lead one to a misinterpretation of the provisions of law besides leading him in arguing or advocating incorrect interpretation of the provision which may lead to a poor judgment. It is well known that the quality of judgment is directly connected to the quality of arguments raised before the Court.

EVIDENCE

Evidence can be characterized as oral/documentary evidence. The relevance proof, exhibition and admissibility of evidence has been copiously dealt with and provided in the Indian Evidence Act (herein after called the Act.). The detailed discussion on this subject is contained in my Article Document: Proof, Exhibition and Admissibility published in 2019(3) RCR(Journal Section) Page 43. The same may be referred to in this context.

The powers of the court have also been defined in the Act. Section-61 of the Act provides as under:-

"Proof of contents of documents.-The contents of documents may be proved either by primary or by secondary evidence."

A close scrutiny of this section reveals that how and in what manner the contents of the documents have to be proved. Though two modes have been suggested in this section. The use of word "MAY" in this section leaves it to the discretion of the person proving the contents of the document. Primary and Secondary Evidence has been defeinded in Section 62 and 63 of the Act.

Section 64 of the Act which reads as follows:-

"Proof of documents by primary evidence.-Documents must be proved by primary evidence except in the cases hereinafter mentioned."

A conjoint reading of both the above sections leads to only conclusion that documents have to be proved by primary evidence. The use of word"MUST" in this section makes it mandatory besides being a condition precedent that the documents have to be proved by means of primary evidence. Once section 64 of the Act mandates that documents are to be proved by primary evidence, then , section 136 of the Act comes in to play which reads as follows;-

"Judge to decide as to admissibility of evidence.-When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise. If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking. If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact."

A critical analysis of this section shows that Judge may ask the party proposing to lead evidence as to how the said evidence if proved will be relevant while the second part of this section lays down that the Judge shall admit the evidence, if he thinks fit. It is the sole prerogative of the Judge to admit the evidence on fulfillment of essentials laid down in section 136 of the Act. A duty is cast upon the litigant leading his evidence to prove the documents by way of primary evidence only.

In view of the above discussion it is clear that the Judge has to decide about the admissibility of the Evidence. How a party, without the permission of the Court, Suo moto and at his own whims and fancies, can lead secondary evidence of the document. Every word used in all the sections (Supra) have their own importance and meaning.

Even Section 65 of the Act says:-

"Secondary Evidence may be given..............................................."

Also shows that after satisfying the conditions laid down in various subsections of Section 65 of the Act, such and evidence may be lead by either party.

IMPORTANCE OF PRIMARY EVIDENCE

The legislature in his wisdom laid down that the contents of the documents have to be proved by primary evidence. Secondary evidence is just like twins, who are born within a short span of time but have their own characteristics habits and fate. Though they look alike but the behavior habits and experience of twins are totally different. If primary evidence is not lead of the contents of the document then it will lead to complete confusion and chaos. Thus, the permission of the court to lead secondary evidence becomes necessary. Otherwise, One party will lead his evidence as per his own wishes. It will lead to complete wastage of time of the court. Otherwise also, why a party should not prove the contents of the documents by way of primary evidence.

JUDICIAL INTERPRETATION BY HIGH COURTS QUA PERMISSION

There is a divergence of opinions amongst various high courts wherein-

(a) In one set of ruling^[3*] provides that no permission is required for leading secondary evidence. The court may at the time of final arguments may decide about the same. Serious objection to such a view is that at the fag end of the trial and during course of arguments, the courts comes to this conclusion that party has failed to provide justification for leading secondary evidence. This set of rulings also lays down that no application supported by an affidavit is required to be filed. Without filing of application and seeking permission of the court, the party is competent to lead secondary evidence. The courts have further held that it has not been mandated anywhere in the Act that application has to be filed under all circumstance. It is humbly submitted that there are number of provisions under the Indian Evidence Act and other Acts(supra) wherein it is not specifically provided that an application is required to be filed. The legislature in its wisdom has not provided under various acts that an application is required to be filed. Such logic does not hold good.

[3* 2019(9) RCR(C) 3009, 2018(3) PLR 181, 2015(5) RCR(C) 941, 2018(4) RCR(C) 409]

(b) The other set of rulings^[4*] have categorically held that an application supported by an Affidavit is required to be filed for seeking permission to lead secondary evidence. In the absence of such application, no party is competent and that too as a matter of right, can lead secondary evidence. Seeking of permission from the court is, thus, mandatory. In absence of such permission the secondary evidence can be outrightly rejected.

[4* 2012(44) RCR(C) 90, 1993(2) RRR 367. 2012(5) RCR(C) 701, 2015(58) RCR(C) 955, 2002(3) RCR(C) 185, 2010(30) RCR(C) 488, 2000(2) RCR(C) 246, 2009(5) RCR(C) 430]

Otherwise also, over the years, a practice has been adopted by the courts/litigants to the effect that they file an application supported by an affidavit enumerating the circumstances laid down in Section 65 of the Act to seek permission of the court. The court after being prima facie satisfied about the existence, loss and proof of the primary evidence, may permit the party to lead secondary evidence. The grant of permission by the court is thus conditional. The onus of proof is on the party leading evidence to prove the existence, loss and proof of the document.

There is plethora of case laws on the point as to in what cases the said conditions have been fulfilled by the party. Secondly the court can decide about the admissibility of such secondary evidence, which is sine qua non or the grant of permission. No hard and fast rules can be laid down in this regard. It depends upon the peculiar facts and circumstances of the case. There may be innumerous circumstances which may exists in a particular case. Otherwise also the law, its interpretation and application goes on varying with the change of circumstances and the changes which may take place in the society from time to time. Law has to adapt according to the changed circumstances.

(c) INTERPRETATION BY SUPREME COURT

The apex court of India^[5*] has categorically laid down that filing of an application supported by an affidavit is must for permission to lead secondary evidence. The party has to lay down the foundation for adducing secondary evidence.

[5* AIR 2000 SC 1759, AIR 2011 SC 1492, 2015(4) RCR(C) 1023 AND 2020(2) RCR(C) 510]

For example:- In a suit for specific performance filed on the basis of an agreement to sell, a photostat copy of the agreement of sale is annexed with the plaint under order 7 Rule 14 CPC. Later on, during the course of evidence the plaintiff moves an application for permission to lead secondary evidence on the ground that the original agreement of sale has been lost by him prior to the filing of the suit. No such fact is either pleaded in the plaint or replication. In these modern days of advance technology, such a Photostat copy can be prepared at any time. Whether in such circumstances, can permission be granted or not?

QUESTIONS TO BE CONSIDERED

i. Whether the view taken by the Apex Court is applicable?

ii. Whether judgments of the High Courts holding that not such application is required to be filed is correct interpretation of law?

iii. Whether prior permission of the court to lead secondary evidence is mandatory or not?

PER INCURIAM AND ARTICLE 141 OF THE CONSTITUTION OF INDIA

The answer to the questions posed above is that the law laid down by the Apex Court of India is binding upon all the courts in India under Article 141 of the Constitution of India. The law laid down by the Apex Court is applicable and has to be followed by the various High Courts in its letter and spirit.

Secondly, the doctrine of "per incuriam" which lays down that any judgment rendered by any court without discussing or differentiating the earlier judgment is bad in law. If the court comes to a different conclusion then it has to refer the matter to a higher bench. Thus, the view taken by the various high courts without discussing the earlier law especially of the Apex Court of India is bad in law. Such an interpretation of law is liable to be ignored as inapplicable and against the law.

CONCLUSION

From the above discussion of the various provisions of the Act and the judicial decision it becomes abundantly clear that the view of various High Courts that no permission is required to lead the secondary evidence is not the correct interpretation. An application supported by an affidavit is required to be filed for leading secondary evidence. No one can be permitted to lead secondary evidence without seeking the permission of the court.

[1*] The author passed degree in Master of Laws from the Panjab University Chandigarh in the year 1978. He has been practicing on civil side at Ludhiana. He has been a guest professor in Panjab University Regional Centre, Ludhiana. The author has written various articles, which have been published in the journals. The author has also addressed various webinars on facebook/youtube on various legal aspects to enlighten the younger generation. He had judged various moot competitions held in PURC, Ludhiana. Contact No. 9814712425, email: advocateajayjindal@gmail.com, Ch.No.425, 4th Floor, Advocates Complex, District Courts, Ludhiana, Punjab.

[2*] The co-author started visiting the courts since may, 2011 and completed his law graduation from Panjab University, Chandigarh and is regularly doing practice on Civil Side. Email:-Abhayjindal14@yahoo.co.in, M No. 9814912425

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