Mohan Singh vs Malkeet Kaur And Another
2022 Latest Caselaw 6722 P&H

CR-5598 of 2019 (O&M)                                               -1-

        IN THE HIGH COURT OF PUNJAB AND HARYANA
                     AT CHANDIGARH


                                            CR-5598 of 2019 (O&M)
                                             Date of decision: 13.07.2022

Mohan Singh                                                          ...Petitioner

                                      Versus
Malkeet Kaur and another

                                                                   ...Respondents

CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL

Present: Mr. Vipin Mahajan, Advocate for the petitioner.

Mr. Inderjit Sharma, Advocate for the respondents.

ANIL KSHETARPAL, J (Oral)

An application filed by the plaintiff for permission to lead the

secondary evidence has been dismissed. He wants to produce photocopy of

the agreement/contract. He claims that while coming to meet his counsel

along with original documents, the same got displaced. The court has

dismissed the application. The plaintiff has filed a suit for recovery of

Rs.22,00,000/- along with interest @ 18% per annum after paying ad-

valorem court fee.

This court after following the judgment passed by the Supreme

Court, the Bombay High Court as well previous judgment of jurisdictional

Court has held that there is no provision that mandates filing an application

in advance for seeking the permission of the Court to lead secondary

evidence. In fact, the Bombay High Court after noticing that a wrong

practice has developed in the courts, has made strong observations directing

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CR-5598 of 2019 (O&M) -2-

the trial Courts not to insist on filing such application which is not supported

by law. Reference in this regard can be made on the judgments passed in

Madan vs. Shankar and others (RSA-327-1989 decided on 01.11.2018),

Dhanpat vs. Sheo Ram 2016 SCC 209 and in Civil Revision Application

no.82 of 2016 decided on 10.11.2017 by the Bombay High Court.

It has been found that a wrong practice of entertaining

application for permission to lead secondary evidence has continued over a

period of time, though, it is not backed by any provision under the Code of

Civil Procedure, 1908, the Indian Evidence Act, 1872, or under the High

Courts Rules and Orders which provides for mandatorily seeking the prior

permission of the Court to lead secondary evidence.

The evidence is of two types, namely, primary and secondary.

The court after the evidence has been led, can adjudicate as to whether the

evidence led is primary or secondary. If the court comes to a conclusion that

the evidence, so led, is secondary, the court is required to see whether it

fulfills the parameters laid down in the Indian Evidence Act, 1897 with

regard to its admissibility. Hence, the filing of an application for permission

to lead secondary evidence is not required.

Keeping in view the aforesaid facts, the order under challenge is

set aside. The plaintiff (petitioner) shall be permitted to lead evidence and

thereafter, the court will decide, in accordance with law.

All the pending miscellaneous applications, if any, are also

disposed of.

July 13, 2022                                          (ANIL KSHETARPAL)
nt                                                           JUDGE

Whether speaking/reasoned                : Yes/No
Whether reportable                       : Yes/No


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