Secondary Evidence Admissible Only When Custody of Original is Pleaded and Notice Under Section 66 Is Proved: Punjab & Haryana High Court

“Though courts should not non-suit parties on technicalities, procedural laxity cannot override specific legal requirements under the Evidence Act” –  In a significant ruling delivered on 6th November 2025, the Punjab and Haryana High Court exercised its supervisory jurisdiction under Article 227 of the Constitution of India to set aside a trial court order which had allowed an application for producing secondary evidence of a registered Will dated 17.11.1979 at the rebuttal stage of trial.

The Court observed that the application had been allowed “without any foundational pleading or timely disclosure regarding the custody or loss of the original Will”, and therefore, suffered from legal infirmity. While allowing the revision petition, the High Court directed the trial court to evaluate the admissibility and proof of the Will independently under the Indian Evidence Act, 1872, without being influenced by the now-set-aside order.

“Application to Lead Secondary Evidence Requires Prior Pleadings and Statutory Compliance, Not Mere Equitable Consideration”

The judgment arises from a civil suit for partition, declaration and permanent injunction concerning properties allegedly devolved through a chain of Wills, the earliest being a Will dated 17.11.1979, allegedly executed by S. Budh Singh in favour of his son Amrik Singh, and later by Amrik Singh in favour of plaintiff Tejpal Singh.

The trial court, by order dated 13.09.2024, had allowed the plaintiffs’ application to produce secondary evidence of the 1979 Will. This application, however, was filed only after closure of evidence, at the rebuttal stage. The defendant-petitioner challenged the said order before the High Court, alleging procedural impropriety and non-compliance with the Indian Evidence Act, 1872.

The suit filed by the respondent-plaintiffs involved properties alleged to have devolved from Budh Singh to Amrik Singh (his son) through a registered Will dated 17.11.1979, and thereafter to Tejpal Singh via another Will in 2012. The defendant, Gurjit Singh, was impleaded as one of several defendants, including family members of Budh Singh.

The execution of the 1979 Will was denied by the defendants, who labelled it as forged and fabricated in their written statements. Notably, nowhere in the plaint did the plaintiffs plead that the original Will was in the custody of the defendants, nor was any notice under Section 66 of the Evidence Act served prior to seeking secondary evidence.

Issues were framed in 2017, and the parties led their respective evidence. At the stage of rebuttal evidence and final arguments, plaintiffs moved an application under Order 18 Rule 3 CPC, seeking to produce secondary evidence (certified copy as Exhibit PW5/2 and photocopy as Mark-G), claiming that the original Will was with Harjinder Singh (defendant No.1).

The trial court allowed the application, relying on equitable considerations and observing that justice would be served by allowing the secondary evidence. The defendant approached the High Court under Article 227, challenging the legality of this order.

Justice Vikram Aggarwal, delivering a reportable and reasoned judgment, examined the matter in light of statutory provisions under the Indian Evidence Act, 1872, specifically Sections 61, 63, 64 and 65, and Order 18 Rule 3 CPC.

The Court observed:

“There was no foundational pleading in the plaint regarding the custody of the original Will, nor any timely steps to establish the grounds under which secondary evidence could be permitted under Section 65.”

Further, Justice Aggarwal highlighted the mandatory nature of statutory compliance when attempting to rely on secondary evidence, holding that Order 18 Rule 3 CPC, while permitting rebuttal evidence, does not override or dilute the strict requirements of the Evidence Act.

Quoting Section 65(a) of the Act, the Court clarified:

“Secondary evidence may be given only when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved… and when after notice under Section 66, such person does not produce it.”

Here, no such notice was issued, and there was no prior averment in the pleadings about the defendant’s custody of the Will.

The Court also relied on the Supreme Court’s nine-principle framework for examining secondary evidence, laid down in Vijay v. Union of India (2023) 17 SCC 455, and emphasized:

“Before producing secondary evidence, the non-production of the original must be accounted for in a manner that can bring it within one or other of the cases provided for in the section.”

No Mandatory Application Required When Will Already Exhibited – But No Liberty to Cure Pleading Gaps at Rebuttal Stage

The High Court pointed out that certified copy of the Will (Exhibit PW5/2) and photocopy (Mark-G) had already been exhibited. One attesting witness, PW5 – Lalit Kumar, had also been examined. Therefore, there was no legal necessity to file a separate application under Section 65(c).

Citing Dhanpat v. Sheo Ram, the Court reaffirmed that:

“An application for leading secondary evidence is not mandatory when the document has been otherwise introduced into the record and evidence exists explaining the non-availability of the original.”

However, in this case, the factual foundation was completely missing. The Court observed:

“It was for the first time in the application at the rebuttal stage that plaintiffs claimed the Will was not in their custody, and that it was with the defendants. Such averment, if genuine, should have been made in the plaint and steps taken earlier.”

Equitable Considerations Cannot Override Statutory Requirements

While acknowledging that courts should not dismiss genuine claims merely on technicalities, the Court clarified that procedural leniency cannot be allowed to undermine the strict requirements of the Evidence Act.

Quoting from U. Sree v. U. Srinivas (2013) and Bharat Bhushan Ahuja v. Kiran Sachdeva (2023), the Court underlined the risks of permitting secondary evidence without sufficient safeguards:

“To permit secondary evidence which has been destroyed by the person in whose possession it was, and which created an enforceable legal right, is normally not to be allowed as secondary evidence may be tempered or changed… against public policy to take that risk.”

Trial Court Must Independently Assess Proof of Will on Merits

Setting aside the trial court’s order, the High Court concluded:

“There was no need for an application to be filed, and in any case, the same was wrongly allowed by the trial Court. The admissibility and proof of the Will must be examined independently, strictly in accordance with the Evidence Act.”

Accordingly, the revision petition was allowed, and the application filed by the plaintiffs for producing secondary evidence of the Will dated 17.11.1979 was dismissed.

The Court, however, granted liberty to the trial court to assess the proof of the Will on its own merits, including the evidentiary value of the certified copy and attesting witness, without being influenced by the now-invalidated order.

Date of Decision: 06 November 2025