Failure to Meet Section 65 Evidence Act Parameters Bars Secondary Evidence: Himachal Pradesh High Court

In a significant ruling concerning the admissibility of evidence in civil suits, the High Court of Himachal Pradesh has clarified that the provision of secondary evidence is not a matter of judicial discretion, but a strictly statutory process. Justice Ajay Mohan Goel, presiding over the case of Shri Mansha Ram vs. Shri Amar Nath , set aside a lower court’s order that had permitted a plaintiff to rely on secondary evidence without satisfying the mandatory thresholds set by Section 65 of the Indian Evidence Act.

A Struggle Over Succession

The dispute centers on the estate of the late Smt. Har Dei. The plaintiff, the late Amar Nath, had sought a declaration of ownership based on a 2009 Will allegedly executed by his mother. He claimed that after her passing, he attempted to register this document, but it was reportedly misplaced from the office of the Sub-Registrar due to the influence of the defendant, his brother.

Conversely, the defendant argued that the property had already devolved to him under a previous, registered 1985 Will. He vehemently denied the existence of the 2009 document, claiming it was a fabrication. When the plaintiff unsuccessfully sought to prove the alleged Will through secondary evidence, the trial court initially allowed his application. The petitioner then escalated the matter to the High Court, challenging the legality of that permission.

The Arguments: Disputed Evidence vs. Statutory Compliance

The petitioner’s counsel argued that the trial court’s order was "per se perverse," contending that the application lacked the essential ingredients required to invoke Section 65 of the Evidence Act. By allowing the submission, the lower court had effectively granted an opportunity to bolster a contested, potentially forged document.

The respondent maintained that secondary evidence was the only available path, given the document’s disappearance. They further argued that the existence of the Will was admitted by the other defendants in the suit, providing sufficient grounds for the trial court’s decision.

Legal Analysis: The Bounds of Section 65

Justice Ajay Mohan Goel’s analysis emphasized that Section 65 is not a loose mechanism for admitting copies in lieu of originals. For secondary evidence to be admissible: 1. The original must be proven to be in the possession of the opposing party who refuses to produce it; 2. The existence or contents must be admitted in writing by the opposing party; or 3. The original must be proven to be lost or destroyed through no fault of the party seeking to introduce it.

The Court noted that the trial court failed to evaluate these requirements critically. Crucially, the High Court identified that reports from the SDM and SDPO had already indicated that the plaintiff had never actually submitted an original document to the Sub-Registrar—only a photocopy—thereby undermining the claim that the original was lost in official custody.

Key Observations

The judgment offers a firm reminder on the limits of trial court discretion:

• "The opportunity given to a party to lead secondary evidence is not a matter of discretion vested upon the Court, but such an opportunity can only be granted if the parameters, as have been laid down in Section 65 of the Evidence Act, are met."
• "The findings returned by the learned Trial Court to the effect that merely giving an opportunity to the plaintiff to lead secondary would not dispense with the requirements of law... are self-contradictory."
• "The allegation of the plaintiff is not that the original Will is in possession or power of the defendant... this extremely important aspect of the matter was overlooked by the learned Trial Court."

Impact on Future Litigation

By quashing the order, the Himachal Pradesh High Court has reinforced the sanctity of primary evidence in civil disputes. The decision serves as a warning to litigants that secondary evidence applications must be substantiated by more than mere allegations of loss or foul play. Moving forward, trial courts in the jurisdiction are expected to exercise greater rigor in ensuring that the procedural prerequisites of the Evidence Act are fully met before allowing the substitution of original documents.

The parties have been directed to appear before the trial court on November 17, 2025, to continue the proceedings in accordance with the law.