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Secondary Evidence Can be Produced Without Application

In DHANPAT vs SHEO RAM (DECEASED), in the appeal before the Supreme Court against order of the High Court, while defending the impugned order, the plaintiff-respondent argued that the original Will has not been produced and no application for leading secondary evidence was filed. Therefore, the secondary evidence could not be led by the defendant to prove the execution of the Will.

The Supreme Court observed that the Section 65 of the Evidence Act permits secondary evidence of existence, condition, or contents of a document including the cases where the original has been destroyed or lost.

Dismissing the decision of the High Court, the Supreme Court held that there is no requirement that an application is required to be filed in terms of Section 65(c) of the Evidence Act before the secondary evidence is led. A party to the lis may choose to file an application which is required to be considered by the trial court but if any party to the suit has laid foundation of leading of secondary evidence, either in the plaint or in evidence, the secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed.

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