Opportunity To Lead Secondary Evidence Not Matter Of Court’s Discretion; Parameters U/S. 65 Of Evidence Act Have To Be Met: Himachal Pradesh High Court

The Single Bench of Justice Ajay Mohan Goel held, “While returning these findings, learned Trial Court erred in not appreciating that 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 in terms of the application which is filed by the applicant before the Court.”

Senior Advocate Bhupender Gupta represented the Petitioner while Senior Advocate Ashok Sud represented the Respondent.

Factual Background

The deceased-respondent, who was the plaintiff before theTrial Court, filed a suit praying for a decree of declaration to the effect that the plaintiff and first defendant were joint owners in possession in equal shares over the share of late Har Dei, as per her last Will executed in 2009 and revenue entries showing Har Dei as the owner in possession in revenue record were illegal, null and void. According to the plaintiff, after the death of their mother, he asked the first defendant to get the mutation attested on the basis of a Will 2009, but the first defendant, on flimsy pretexts evaded it. Thereafter, the plaintiff filed an application for registration of the aforesaid Will, but the first defendant threatened to forcibly dispossess the plaintiff from the suit land and started claiming his sole right over the suit land. Hence the suit was filed.

An application under Section 65 of the Evidence Act was filed by the plaintiff before the Trial Court seeking leave to lead additional evidence. A notice as required under Section 65 of the Evidence Act was served upon the first defendant calling upon him to produce the original Will, but as he failed to do so. Therefore, the plaintiff had no option but to file the application with the prayer that the plaintiff be allowed to prove the said Will by leading secondary evidence.

Reasoning

The Bench explained that Section 65 of the Evidence Act provides that secondary evidence may be given of the existence condition or contents of documents in the matters which stand mentioned there. It noticed that the Trial Court allowed the application permitting the plaintiff to lead secondary evidence by holding that the plaintiff alleged that the Will in original was misplaced by the first defendant in connivance with the Sub-Registrar.

As per the Bench, the allegations made in the plaint, which were controverted in the written statement, could not be deemed to be a presumption of the fact that the Will was in possession of the first defendant. “This extremely important aspect of the matter was overlooked by the learned Trial Court while allowing the application”, it added. The Bench also made it clear that in terms of Sub-Section (b) of Section 65 of the Evidence Act, secondary evidence can be permitted when the existence or condition of contents of the Will has been proved to be admitted in writing by the person against whom it is proved or by his representative in interest. In the present case, the existence of the Will was not admitted by the first defendant and the said defendant denied its existence in the written statement.

The Bench explained that as far as the ingredients of Sub-Section (c) of Section 65 of the Evidence Act are concerned, in terms thereof, secondary evidence can be allowed to be led when the original has been destroyed or lost or when the party offering evidence of its contents cannot for any other reason not arising from its own default or neglect, can produce it in reasonable time.

Considering the fact that it was only the present petitioner who was made the contesting defendant, the Bench held that the admission of the existence of the Will by other defendants had no relevance as far as the adjudication of this application was concerned. This was because the contents of the application had to be taken into consideration vis-à-vis the response as was filed thereto by the contesting defendant i.e. the present petitioner. “Though in the present case, it is the allegation of the plaintiff that he submitted the original Will for the purpose of registration before Sub-Registrar and from there the Will got misplaced by defendant No.1, however, the same cannot be construed to be a fact from which it can be inferred that the original Will has been destroyed or lost because it is an allegation of the plaintiff, which presently is not substantiated”, it mentioned.

Holding that the Trial Court erred in considering the important aspects of the matter, the Bench allowed the Petition and set aside the impugned order. The Bench has now directed the parties to appear before the Trial Court on November 17, 2025.

Cause Title: Shri Mansha Ram v. Shri Amar Nath (Neutral Citation: 2025:HHC:36120)

Appearance

Petitioner: Senior Advocate Bhupender Gupta, Advocate Janesh Gupta

Respondent: Senior Advocate Ashok Sud, Advocate Rajat

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