The admissibility of secondary evidence and the requirement for formal application for permission under the Evidence Act.

Anil Kshetarpal, J.

By this judgment, Regular Second Appeal Nos. 2486 and 3901 of 2010, filed by the plaintiff and the defendant, respectively, shall stand disposed of as both are arising out of the same suit. Main appeal being RSA No.3901 of 2010 has been filed by the Plaintiff-appellant against concurrent findings of fact arrived at by the courts below.

2. Plaintiff Smt. Shanti filed a suit claiming to be widow of late Sh. Ganeshi Lal.

3. On the other hand, defendant claims that Smt. Shanti is not the widow and late Sh. Ganeshi Lal had executed a registered Will in his favour on 02.06.1995. Defendant further pleaded that the plaintiff was not the wife of Ganeshi Lal, whereas Smt. Krishna daughter of Shankar Lal was the wife of Ganeshi Lal.

4. Learned trial court after appreciating the evidence available on the file, dismissed the suit while recording a finding that the plaintiff has failed to prove that she was the wife of late Sh. Ganeshi Lal. The court further held that the registered Will stands proved as scribe, attesting witness Hari Singh, Sub-Registrar who registered the Will and registration clerk have been examined in evidence.

5. Plaintiff filed the first appeal. Learned first appellate court upheld the finding of the trial court that the plaintiff is not proved to be wife of late Sh. Ganeshi Lal. However, learned first appellate court held that the Will is not proved as the original will was not produced and no permission was sought for leading secondary evidence. Learned first appellate court, however, committed an error in partly accepting the appeal although the suit filed by the plaintiff was to be dismissed. Once the Court had found that plaintiff was not the wife of late Sh. Ganeshi Lal, that is how the defendant-appellant is also in appeal.

6. Learned counsel for the appellant-Shanti Devi in RSA No.3901 of 2010, while relying upon Ex.P1, a copy of the voter list prepared in the year 1970 to assert the relationship between Shanti Devi and Ganeshi Lal is proved. He further submitted that Smt. Shanti Devi is also getting a widow's pension from the Welfare Department. He has also submitted that brother of late Sh. Ganeshi Lal had appeared on her behalf and had supported her case.

7. On the other hand, learned counsel for the defendant-respondent has submitted that when Smt. Shanti Devi appeared in the evidence in Court, she could not even disclose the names of the family members and close relatives of late Sh. Ganeshi Lal. He has further referred to Ex.DW7/A, Ex.DW7/B and Ex.DW7/C, to assert that late Sh. Ganeshi Lal was married to Smt. Krishna.

8. In the considered opinion of this Court, following questions of law arises for determination:-

“Whether a separate application for permission to lead secondary evidence is required to be filed before secondary evidence can be taken into consideration?”

9. Sections 63, 65 and 66 of the Evidence Act does not provide for filing any formal application for permission to lead secondary evidence. Section 65 of the Act only provides that the secondary evidence may be given by the party in the absence of primary evidence. Normal practice is that a separate application is filed. However, in cases where secondary evidence has already been led, courts should not ignore the evidence led only on the ground that application for permission has not been filed and allowed. Secondary evidence has been defined in Section 63 of the Act, whereas Section 65 of the Act deals with cases in which secondary evidence relating to documents may be given. Sections 63 and 65 of the Evidence Act are extracted as under:-

63. Secondary evidence

Secondary evidence means and includes-

(1) certified copies given under the provisions hereinafter contained;

(2) Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies.

(3) copies made from or compared with the original ;

(4) counterparts of documents as against the parties who