Delhi High Court
Neena Khanna vs Wenger & Co & Ors on 11 August, 2025
$~88
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 11th August, 2025
+ CM(M) 1396/2018
NEENA KHANNA .....Petitioner
Through: Ms. Shalini Kapoor with Mr. Dhruv
Chawla, Ms. Divyanshi Saxena, Mr.
Udit Bhatiani, Ms. Aadya Sinha,
Advocates.
versus
WENGER & CO & ORS .....Respondent
Through: Mr. Ankit Jain, Sr. Advocate with Mr.
Naresh Gupta, Mr. Rachit Gumber,
Advocates.
Mr. Swastik Singh, Advocate.
CORAM:
HON'BLE MR. JUSTICE MANOJ JAIN
J U D G M E N T (oral)
CM(M) 1396/2018& CM APPL. 49111/2025
1. Petitioner seeks early hearing of the matter.
2. The Court has gone through the impugned order dated 01.10.2018
whereby the request of plaintiff/petitioner seeking to lead secondary evidence
was disallowed, primarily, for the reason that the plaintiff herself had, at
earlier point of time, during the pendency of present suit only, had sought
exemption from filing original documents, which was allowed by this Court,
when the suit was pending before this Court on its original side. Thereafter
also, she moved an application seeking to place on record the document in
question i.e. original Will of Sh. R.S. Tandon.
3. However, during admission/denial of documents, the Will in question
was found to be a photocopy and not the original one and it was in the
abovesaid backdrop of the facts that the plaintiff sought permission to lead
secondary evidence.
4. Learned counsel for petitioner strongly relies upon Prem Chandra Jain
and Others. vs Sri Ram and Others.: 2009 SCC OnLine Del 3202 and submits
that learned Trial Court should have, at least, granted petitioner a due
opportunity of leading evidence, with respect to the controversy in question
and her application should not have been decided, merely, on the basis of the
averments made in the application.
5. Para 5 of the abovesaid judgment reads as under:-
"5. The court, on an application seeking permission to lead
secondary evidence, even if setting out reasons as contained in
either of the clauses of Section 65, cannot take a decision on the
correctness of the reasons. The application thus serves no
purpose except delaying the proceedings. It is however often
found that the courts allow or disallow the applications, without
giving an opportunity to the parties for laying a foundation for
reception or rejection of secondary evidence. Such procedure is
impermissible in law. Factual controversies cannot be
adjudicated on applications. That is however not to be understood
as allowing a mini-trial on this aspect. The party seeking to prove
document by secondary evidence is to lead evidence of the
existence of circumstances/situations in which secondary
evidence is permissible, during leading its evidence, whether by
way of examination of witnesses or cross examination of
opponents witnesses, in the suit/other proceeding itself. It will be
decided at the stage of disposal of suit only, whether case for
leading secondary evidence has been made out or not and if so,
whether document stands proved by secondary evidence."
6. Learned Senior Counsel for respondent also submits that he would
have no objection if the present petition is disposed of in terms of the
abovesaid specific directions and that the learned Trial Court can always, at a
later stage of the case, can take appropriate decision whether the petitioner
herein meets the foundational requirement for leading secondary evidence or
not.
7. Present petition is, accordingly, disposed of in aforesaid terms and the
impugned order stands modified to the abovesaid extent and learned Trial
Court would, therefore, be at liberty to consider the above aspect of leading
secondary evidence afresh in terms of Prem Chandra Jain (supra).
8. Pending application also stands disposed of in aforesaid terms.
9. Date already fixed i.e. 28.10.2025 stands cancelled.
(MANOJ JAIN)
JUDGE
AUGUST 11, 2025/ck/sw/JS
