2026 Supreme(SC) 146

SUPREME COURT OF INDIA
Pankaj Mithal, S.V.N. Bhatti, JJ.
Tharammel Peethambaran And Another – Appellants
Versus
T. Ushakrishnan and another – Respondents
Civil Appeal No. 856 of 2026 [@ SLP (C) NO. 11868 of 2024]
Decided On : 06-02-2026

IMPORTANT POINTS
(1) Second appeal – Legality of a finding of fact, when challenged on the ground of perversity, itself constitutes a question of law and may give rise to a substantial question of law under Section 100 of CPC.
(2) Secondary Evidence – Before secondary evidence can be admitted, party relying on it must lay a factual foundation – Secondary evidence is inadmissible until non-production of original is accounted for.
(3) Photocopy of a document is no evidence unless same is proved by following procedure set out.

Headnote:

(A) Civil Procedure Code, 1908 – Section 100 – Second appeal – Substantial question of law – General rule is that findings of fact recorded by trial and appellate courts are binding and will not be disturbed, even if they appear to be erroneous – However, this restriction is not absolute – Where findings of fact are founded on assumptions, conjectures or surmises, or suffer from vice of perversity, High Court is well within its jurisdiction to interfere with findings of fact – Legality of a finding of fact, when challenged on the ground of perversity, itself constitutes a question of law and may give rise to a substantial question of law under Section 100 of CPC – A decision based on no evidence is not confined to cases of complete absence of evidence, but also includes cases where evidence on record, taken as a whole, is incapable of reasonably supporting findings recorded – A finding that outrageously defies logic, suffers from irrationality, or is such that no reasonable person acting judicially could have arrived at it, is equally perverse in eye of law – Findings resting on ipse dixit of court or on conjecture and surmises reflect non-application of mind and stand vitiated on that ground as well – Insofar as documentary evidence is concerned, inference drawn from contents of a document is ordinarily a question of fact – However, legal effect of a document's terms, its construction involving the application of legal principles, or a misconstruction thereof gives rise to a question of law. (Paras 16.1, 16.2, 16.3 and 16.4)

(B) Indian Evidence Act, 1872 – Section 65 – Secondary Evidence – Before secondary evidence can be admitted, party relying on it must lay a factual foundation – Secondary evidence is inadmissible until non-production of original is accounted for in a manner that brings the case within specific exceptions provided in Section 65 – If original itself is found to be inadmissible through failure of party who files it to prove it to be valid, same party is not entitled to introduce secondary evidence of its contents – Mere admission of a document or making it an exhibit does not dispense with requirement of proving it in accordance with law – Court has obligation to examine probative value of document and decide question of admissibility before making endorsement on secondary evidence – If foundational facts, such as loss of original or explanation for its non-production, are not established, court cannot legally allow party to adduce secondary evidence. (Paras 20.2, 20.3 and 20.6)

(C) Registration Act, 1908 – Section 33 read with Section 85 of Indian Evidence Act, 1872 – Registration of document – Authorisation of Power of Attorney – Courts should not by itself compare disputed signatures without assistance of any expert, when signatures with which disputed signatures compared, are themselves not admitted signatures – Neither Section 33 of Registration Act nor Section 85 of Evidence Act would come into application if primary requirement of adducing secondary evidence is discharged by party relying on the document – In absence of an original or at least a secondary evidence, it is impermissible to apply Section 85 of Evidence Act to conclude execution and extent of authority given by plaintiff to defendant – Photocopy of a document is no evidence unless same is proved by following procedure set out. (Para 23)

Facts of the case:

Present appeal is at instance of 1st and 2nd Defendants in O.S No.197 of 2013 before Senior Civil Judge, Kozhikode. 1st Respondent filed OS No. 197 of 2013 for declaration, perpetual injunction, and damages for use and occupation. Plaintiff is admittedly owner of Plaint A- Schedule consisting of three items of immovable property. A few household items are mentioned in Plaint B-Schedule. The Plaintiff is 1st Defendant’s sister.

Findings of Court:

Section 85 of Evidence Act falls under Chapter V, titled Documentary Evidence. In absence of an original or at least a secondary evidence, it is impermissible to apply Section 85 of Indian Evidence Act to conclude execution and extent of authority given by plaintiff to 1st defendant. No order is brought to our notice through which secondary evidence is brought on record before Trial Court.

Result : Civil Appeal dismissed.