In a recent deliberation on November 29, 2023, the Supreme Court meticulously unfolded the intricate principles governing the admissibility of secondary evidence under the archaic Indian Evidence Act of 1872.
The legal edifice, articulated by the esteemed bench of Justice Abhay S Oka and Justice Sanjay Karol, articulated the bedrock principles through a comprehensive reference to a series of precedents:
- The legal doctrine mandates the presentation of primary evidence, prioritizing its introduction over secondary evidence.
- Section 63 of the Evidence Act delineates the categories of documents permissible as secondary evidence, acknowledging their admissibility only in the absence of primary evidence.
- The court underscored the imperative to produce and validate the original document as primary evidence, emphasizing that inferior proofs are inadmissible as long as the best evidence is accessible.
- Primary evidence should be earnestly presented, and secondary evidence is a recourse only in exceptional circumstances, safeguarding parties genuinely unable to produce the original.
- The court acknowledged the acceptance of secondary evidence when the non-availability of the original document is adequately explained.
- Secondary evidence becomes permissible when the party is genuinely unable to produce the original document, devoid of any default or neglect.
- Copies, when introduced in the absence of the original, can serve as legitimate secondary evidence, contingent on foundational evidence establishing their fidelity to the original.
- The court emphasized that before introducing secondary evidence, non-production of the original must be judicially accounted for within the parameters of the cases outlined in the relevant section.
- The mere presentation and marking of a document as an exhibit do not constitute conclusive proof of its contents; adherence to legal standards is paramount.
Delving into the factual matrix of a specific case, the litigants, the Plaintiff, and the Defendant, embroiled in an agreement to sell since 04.02.1998, found themselves at the epicenter of a legal maelstrom. The Plaintiff sought specific performance, further compounded by the dismissal of an application to admit a copy of the agreement as secondary evidence, citing the absence of proper stamping.
In the legal arena, Senior Advocate Dr. Menaka Guruswamy ardently contended that Section 35 of the Stamp Act was inapplicable due to the absence of stamp duty requirements during the agreement’s execution. Conversely, the Defendant argued that unstamped copies were inadmissible, aligning with the inadmissibility of the original under the Stamp Act.
The court’s meticulous scrutiny centered on Section 35 of the Stamp Act, dissecting the intricacies of its applicability. The court discerned that the instrument, not incurring stamp duty obligations at the time of execution, was immune to Section 35’s admissibility bar.
Furthermore, the court delved into Section 65(a) of the Evidence Act, elucidating that secondary evidence could be admitted when the original was either held by the opposing party or a third party who refused to produce it. Given the contested status of document possession, the court sanctioned the presentation of secondary evidence, subject to compliance with legal requisites.
In the case of Vijay v. Union of India, Civil Appeal No. 4910 of 2023, the court concluded that the Plaintiff’s plea for admitting secondary evidence was warranted, subject to independent assessment and adherence to legal tenets under the Evidence Act.
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