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BOMBAY HIGH COURT
G.S. Patel, J.
Karthik Gangadhar Bhat —Petitioner
versus
Nirmala Namdeo Wagh and Anr. —Respondents
Writ Petition No.11151 of 2017
Decided on 3.11.2017
Counsel for the Parties:
For the Petitioner: Mr. Tejas Dande, i/b Tejas Dande & Associates
For the Respondents:Mr. PK Dhakephalkar, Senior Advocate, i/b Nilesh Wable
IMPORTANT POINT
A party desiring to lead secondary evidence must do so before the Judge recording the evidence. It is the Judge recording evidence who must decide, if any objection as raised, whether or not to admit the secondary evidence in evidence.
Headnote:Evidence Act, 1872—Sections 65 and 66—Permission to read secondary evidence—No requirement of law to move an application for permission to lead secondary evidence—Foundation evidence must be led and court should record a satisfaction on basis of such evidence that originals were lost or destroyed before admitting secondary evidence.
Held: In the present case it appears that at an early stage an application was filed styled as an ‘application under Section 65 of the Evidence Act’ seeking ‘permission’ to prove the contents of a lease deed by secondary evidence.
The result of such applications, which as I have noted are misconceived and not maintainable, is that exceedingly peculiar orders are passed either allowing or disallowing the leave sought. When leave is granted, apparently secondary evidence is then led but that leave is, as we have seen, completely unnecessary and a party may always place before the Trial Court secondary evidence as contemplated by the Evidence Act without such leave. The result of disallowing the application is even more serious because the evidence in question is wholly excluded from consideration without the slightest examination of the proposed secondary evidence. There is no question of examining the secondary evidence first at the stage of considering the application for leave. If the secondary evidence is sufficient to prove the document, then the document must be admitted into evidence. One of two things happen on any such application: either the secondary evidence is not considered, and the document is shut out, which is wrong, or the evidence is considered twice over, once for the so-called ‘leave’ and then again at the time of admitting the document.
This is no way to conduct the trial. Conceivably, it might result in a document that might otherwise be admissible and proved by secondary evidence being wholly left out only because of an order of this kind on an application that in itself is misconceived and not contemplated in law. This procedure wastes scarce judicial time and achieves nothing. When a party goes to trial, he may have direct or primary evidence of some documents, and secondary evidence of others. It is for him to decide which of these he can best prove by what evidence. (Paras 6, 9 and 10)
Result: Petition allowed.
JUDGMENT (ORAL)
G.S. Patel, J.—Rule. Respondents waive service. By consent, Rule made returnable forthwith and taken up for hearing and final disposal.
2. It is with great regret that I note that the Trial Courts continue persistently to ignore settled law and binding precedents on the question of leading secondary evidence. For reasons that are entirely unclear, there seems to be an insistence on filing an application for ‘permission’ to lead secondary evidence. This is simply wrong.
3. It is settled law that no such application is at all maintainable or even desirable. In Indian Overseas Bank v. Triokal Textile Industries & Ors., AIR 2007 Bom 24 : 2006 (6) Bom CR 85. Vazifdar J (as he then was), in the context of a chamber summons for such a leave filed on the Original Side, held that such a chamber summons is not just unnecessary, it is misconceived. He said it was neither necessary nor desirable; it is always open to the party to lead secondary evidence before the Trial Court recording evidence or hearing the matter without having to file such an application. In paragraph 2, he said:—
“2. A party desiring to lead secondary evidence must do so before the Judge recording the evidence. It is the Judge recording evidence who must decide, if any objection as raised, whether or not to admit the secondary evidence in evidence. If evidence is led before a Commissioner the objection to secondary evidence naturally can only be recorded and not decided by the Commissioner. It is then the Judge hearing the suit who decides the objection.”
(Emphasis added)
4. I myself have followed this decision (as I was bound to do) in Anandji Virji Shah & Ors. v. Ritesh Sidhwani and Ors; Chamber Summons No. 1153 of 2015 in Suit No. 395 of 2007, decided on 27th June 2016. Ajaykumar Krishnaprasad Seth v Maya Ramesh Belvetkar & Anr; Chamber Summons No.17 of 2016 in Testamentary Suit No. 18 of 2003 in Testamentary Petition No. 628 of 2001, decided on 13th October 2016. MMTC Ltd v Samarth Auto Care Pvt Ltd; Suit No. 427 of 1995, order dated 1st October 2014. and Lajwanti v Jayshree P Madhwani & Ors. Testamentary Suit No. 6 of 2004, order dated 14th December 2016.
5. In Sumati & Ors v Yashodhara & Ors, 2016 (6) All MR 507. SB Shukre J had before him a challenge to an order on a similar application. Though he dismissed the challenge, some of these authorities were cited before him, and he said in that context:—
11. In the cases relied upon by the learned counsel for the petitioners and referred to in the earlier paragraphs, it has been held that for adducing secondary evidence it is necessary for the party to prove existence and execution of the original document and that conditions laid down in Section 65 must be fulfilled before secondary evidence can be admitted. This can be seen from the law settled by the Hon’ble Apex Court in the cases of J. Yashoda and H. Siddiqui (supra). Following this law only that learned Single Judges of this Court in the judgments rendered in Luis Sales de Andrade e Souza (jr.) & Anr. (supra) and Yeshwant Rambhau Chondhe (supra) have held that foundational evidence must be led and the Court should record a satisfaction on the basis of such evidence that the originals are lost or destroyed before admitting the secondary evidence. In the cases of Indian Overseas Bank (supra) and Anandji Virji Shah (supra), learned single judges of this Court have held that any objection to secondary evidence must be decided by the Judge recording the evidence. In the cases of Bank of Baroda (supra) and Ganpat Ghongade (supra) learned Single Judges of this Court have followed the settled principle of law regarding necessity of proving the existence and execution of the original document before secondary evidence is admitted. In the case of M. Chandra (supra), the Hon’ble Apex Court has cleared doubt about the form of secondary evidence holding that it may be adduced in any form in which it is available, whether a copy, or copy of copy or any othe
