November 27, 2000 : The Chhattisgarh High Court has allowed defendants in a property dispute to rely on certified secondary evidence after the trial court refused permission to prove a missing original sale deed. Acting Chief Justice R.S. Garg set aside the lower court’s order of January 4, 1999 and permitted the parties to produce certified copies of the sale deed dated May 16, 1966 under Section 65 of the Indian Evidence Act.
The dispute began when the plaintiff, Bhanwar Lal, claimed title to a parcel of land now in the possession of the present defendants and sought a declaration that an earlier sale deed did not bind him. The defendants, who had purchased the property from Haldhar, alleged that Haldhar had proper title, supported by the 1966 sale deed executed in his favour by his father. Haldhar, in his written statement, admitted that the deed existed and that the property had passed through his family branch. When the defendants asked Haldhar to produce the original deed, he swore that it was not in his custody and that it could not be located or produced in the near future.
On that factual record, the High Court emphasized the practical and evidentiary principles behind Section 65. The provision contemplates admitting secondary evidence where the original is material to the issues, is not available, and cannot be produced despite a reasonable effort. The court found the defendants had satisfied these preconditions: the deed was clearly material to their title claim, they were not in possession of the original, they had issued a formal notice seeking production, and Haldhar had sworn that the document was not traceable.
The High Court also noted that while the trial court has discretion to admit or refuse secondary evidence, that discretion must be exercised in line with legal standards and the circumstances. Because the lower court failed to consider the facts and the law correctly, the High Court held the exercise of discretion was materially irregular and therefore set the order aside. The defendants’ application to lead secondary evidence was allowed and the civil revision succeeded without costs.
This decision underscores that when an original document is genuinely unavailable and its absence is shown on the record, courts will typically permit certified copies rather than bar a party from proving an otherwise central fact. The ruling is a reminder to trial courts to apply Section 65 consistently and to weigh whether the judicial conscience is satisfied that secondary evidence should be admitted.
Case Reference : Civil Revision No. 258 of 1999, Dum Ram and Others vs. Bhanwar Lal and Others; For the Appellant/Petitioner/Plaintiff: Shri Tripathi, Advocate; For the Non-applicants: Shri Prashant Mishra, Advocate.
