The Punjab and Haryana High Court clarified that secondary evidence under Section 65 of the Indian Evidence Act cannot be admitted merely on relevance; the party must satisfy the statutory conditions, including a satisfactory explanation for the non-production of the original document. The judgment overturns a lower-court order that permitted a photocopy of a property verification report without establishing loss or destruction of the original.
Background & Facts
The Dispute
The plaintiff, Sandeep Kumar, entered into an agreement to purchase Flat No.2420, Category B, Pushpak-1, Sector 48-C, Chandigarh. The plaintiff alleges that defendants No.1 and No.2 received an earnest money amount of ₹14 lakh but failed to disclose that the flat was mortgaged to M/s Cholamandalam Finance & Investment Co. Ltd. The plaintiff contends that his wife verified the mortgage when officials of the financial institution visited the flat.
Key Facts
- The dispute centres on the alleged non-disclosure of a mortgage on the flat.
- Defendants sought to lead a photocopy of the property visit report as secondary evidence under Section 65 of the Evidence Act.
- The original report was not produced; the defendants claimed it had been destroyed after the mortgage was discharged.
- The Civil Judge (Junior Division), Chandigarh, dated 26 November 2019, allowed the secondary evidence.
- The plaintiff challenged this order, arguing that the photocopy alone does not establish the existence, loss or destruction of the original document.
Procedural History
- 26.11.2019: Civil Judge (Junior Division), Chandigarh, permits defendant No.1 to lead secondary evidence of the property visit report.
- Date not specified: Plaintiff files a revision petition before the High Court of Punjab and Haryana at Chandigarh.
- 10.08.2026: Revision petition is reserved.
- 11.08.2026: Judgment delivered, setting aside the order dated 26.11.2019.
Parties' Positions
- Plaintiff (Petitioner): Argues that the photocopy is a mere copy, the original has not been accounted for, and the statutory conditions of Section 65 are not satisfied.
- Defendants (Respondents No.1 & 2): contend that the photocopy is sufficient to prove the contents of the report and that the original’s unavailability is explained by its alleged destruction.
Relief Sought
The plaintiff sought the setting aside of the order allowing secondary evidence and a direction that the trial court proceed with the suit without reliance on the photocopy.
The Legal Issue
Whether Section 65 of the Indian Evidence Act, 1872 permits admission of secondary evidence when the original document is not produced and the party seeking such evidence fails to establish the statutory foundation - specifically, the loss, destruction or unavailability of the original.
Arguments Presented
For the Petitioner
- The petitioner relied on Smt. J. Yashoda v. Smt. K. Shobha Rani (2007) 5 SCC 730, emphasizing that the conditions of Section 65 must be fulfilled before secondary evidence is admissible.
- Cited Ashok Dulichand v. Madahavlal Dube (1975) 4 SCC 664, noting that secondary evidence cannot be admitted where the foundation for non-production of the original is absent.
- Referred to Rakesh Mohindra v. Anita Beri (2016) 16 SCC 483, asserting that the party must establish the reason for non-production and that mere relevance does not satisfy the statutory requirement.
For the Respondent
- The respondents argued that the photocopy was already on the judicial file, establishing the existence of the document.
- Maintained that the relevance of the property visit report to the dispute on mortgage knowledge justified admission of secondary evidence.
- Contended that the alleged destruction of the original after mortgage discharge placed the case within the contingencies of Section 65.
The Court's Analysis
The Court began by reiterating the hierarchy of evidence under Section 64, which mandates primary evidence, and the limited exceptions under Section 65. It stressed that “mere relevance of a document is not sufficient to make its secondary evidence admissible.”
"Section 65 does not dispense with the requirement of establishing the circumstance, which permits departure from the normal rule of primary evidence."
The Court examined the precedent set in Yashoda, noting that the non-production of the original must be accounted for in a manner that falls within one of the contingencies listed in Section 65. It then distinguished Ashok Dulichand, where the Supreme Court declined secondary evidence because the party failed to lay the requisite foundation regarding the original’s whereabouts.
Similarly, the Court quoted Rakesh Mohindra, emphasizing that the party seeking secondary evidence must prove loss, destruction, or unavailability of the original. The presence of a photocopy on the court file, the Court observed, merely proves the existence of a copy; it does not demonstrate that the copy was derived from an original or explain how the original became unavailable.
The trial court’s reasoning was found to conflate the existence of a photocopy with proof of loss or destruction of the original. The Court held that the impugned order failed to record any categorical finding - based on testimony or other evidence - establishing that the original had indeed been destroyed, when, and by whom.
Consequently, the Court concluded that the statutory foundation required by Section 65 was absent. The admission of secondary evidence was therefore erroneous, and the order permitting it could not stand.
The Verdict
The revision petition is allowed. The order dated 26 November 2019 passed by the Civil Judge (Junior Division), Chandigarh, is set aside. The application filed by defendant No.1 under Section 65 of the Evidence Act is dismissed. The Court clarifies that defendant No.1 may file a fresh application, provided a satisfactory factual foundation regarding the original document’s loss, destruction or unavailability is established. The trial court is directed to proceed with the suit in accordance with law.
What This Means For Similar Cases
Strict Compliance with Section 65
- Practitioners must ensure that any request for secondary evidence is accompanied by concrete proof of loss, destruction, or unavailability of the original document.
- Mere relevance or the existence of a photocopy on the court file does not satisfy the statutory requirement.
Evidentiary Burden on the Party Seeking Secondary Evidence
- The burden lies on the party seeking admission to establish the factual circumstances contemplated by Section 65.
- Courts will look for specific testimony or documentary evidence explaining how the original was lost or destroyed.
Distinction Between Photocopy and Original
- A photocopy can confirm that a document exists, but it cannot, by itself, prove that the original was unavailable.
- Parties should be prepared to produce the original or, if unavailable, provide a detailed account of its disappearance.
Practical Checklist
- Identify the exact provision of Section 65 invoked.
- Gather sworn statements or affidavits explaining loss or destruction.
- Produce any available certified copies and explain their provenance.
- Anticipate objections on relevance and be ready to demonstrate that relevance alone is insufficient.
