Secondary Evidence Is Not a Tool for Delay: Himachal Pradesh High Court on Strict Compliance with Section 65 of the Evidence Act

I. Introduction

The decision in Vinod Kalia v. Bhagwati Public Aushdhalaya through Rattan Chand Kalia, CMPMO No. 650 of 2025, decided on 11 November 2025 by the Himachal Pradesh High Court (per Ajay Mohan Goel, J.), is a reportable judgment clarifying the conditions under which a party may be permitted to lead secondary evidence under Section 65 of the Indian Evidence Act, 1872.

The judgment is significant for two principal reasons:

It reiterates and sharpens the foundational requirements that must be fulfilled before secondary evidence of a document can be allowed.
It sends a clear message that applications under Section 65 cannot be used as procedural tactics to delay trials, and that higher courts will not interfere with trial court orders that refuse such misused applications, absent perversity.

1. Background of the Dispute

The underlying civil suit is a classic landlord–tenant ejectment dispute:

The plaintiff is Bhagwati Public Aushdhalaya, acting through Shri Rattan Chand Kalia.
The defendant, and present petitioner before the High Court, is Shri Vinod Kalia.

The plaintiff filed a suit for possession by way of ejectment from the suit premises on the basis that:

The plaintiff is the owner of the premises.
The defendant is a tenant under the plaintiff.

The defendant/petitioner does not dispute his tenancy over the suit premises, but disputes the plaintiff’s ownership. Thus, the core factual controversy in the suit concerns title/landlordship, not the factum of occupation.

2. Procedural History

The relevant procedural timeline as gleaned from the judgment is:

2015: The ejectment suit is instituted.
Since 2019: The matter stands posted for the defendant’s evidence.
Till the impugned order, the defendant had examined only one witness, who:
- was not connected with the alleged rent agreement dated 17.11.1991, and
- even deposed that the defendant was the owner of the shop.
17.08.2022: The defendant files an application under Section 65 of the Evidence Act, seeking leave to lead secondary evidence of a photocopy of a purported rent agreement dated 17.11.1991.
18.07.2025: The learned Senior Civil Judge-II, Dehra, District Kangra, dismisses the Section 65 application (CMA No. 1096/24).
The defendant/petitioner challenges this order before the High Court by filing the present CMPMO petition.

Notably, the High Court records that at its stage, “Notice not issued” to the respondent, indicating that the petition was dismissed at the threshold/admission stage itself for want of merit.

3. The Section 65 Application in Brief

The petitioner’s Section 65 application sought permission:

to lead secondary evidence to prove a photocopy of an alleged rent agreement dated 17.11.1991;
on the plea that:
- the original agreement was executed between the petitioner and one Shri Roshan Lal, and
- the original was in the possession of Roshan Lal, who had lost it.

The trial court found the application deficient on facts and law, and refused leave to lead secondary evidence. This refusal is what was challenged before the High Court.

4. Core Legal Question

The central legal issue before the High Court was:

Whether, on the facts pleaded and the material placed, the defendant/petitioner had satisfied the statutory conditions under Section 65 of the Indian Evidence Act so as to be permitted to lead secondary evidence of a photocopy of the alleged rent agreement dated 17.11.1991?

Closely tied to this was the ancillary question of whether the trial court’s order refusing such permission suffered from any illegality, infirmity, or perversity warranting interference in the High Court’s supervisory jurisdiction.

II. Summary of the Judgment

Justice Ajay Mohan Goel dismissed the petition, upholding the trial court’s order. The High Court held that:

The trial court correctly interpreted and applied Section 65 of the Evidence Act in refusing permission to lead secondary evidence of the alleged rent agreement.
The foundational requirements for invoking Section 65 had not been met:
- The existence and execution of the original agreement were not established, especially as the plaintiff had denied its execution.
- No material was appended to show that the original was in the possession of Roshan Lal or that it had been lost, not even an affidavit of Roshan Lal.
- The photocopy was not shown to be a certified copy or a copy made by a mechanical process ensuring accuracy.
Nothing prevented the petitioner from examining Roshan Lal as a witness, and even if he was old, the defendant could have sought to have his evidence recorded on commission. The omission to do so undermined the Section 65 plea.
The timing and circumstances of the application (filed in 2022, when the case has been listed for defendant’s evidence since 2019, and with only one defence witness examined by 2025) demonstrated that the application appeared to be outside the purview of Section 65 and also a ploy to delay the case.
The trial court’s order was neither illegal nor perverse; hence, no interference was warranted. The petition was accordingly dismissed, and pending applications stood disposed of.

The judgment thus lays down a clear principle: secondary evidence will not be permitted unless strict foundational requirements under Section 65 are satisfied, and courts will treat belated or unsupported Section 65 applications, especially in long-pending suits, as potentially dilatory.

III. Detailed Analysis

A. Statutory Framework: Section 65 of the Evidence Act

Though the court does not reproduce Section 65 verbatim, it summarises its operative conditions. For context, Section 65 provides circumstances in which secondary evidence may be given of the existence, condition, or contents of a document, such as:

When the original is in the possession or power of the opposite party or someone beyond the reach of the court.
When the existence, condition, or contents of the original are admitted in writing.
When the original has been destroyed or lost.
When the party cannot produce the original for any other reason not arising from its own default or neglect.

The High Court emphasises that only when such conditions are affirmatively shown can the court permit secondary evidence. It also implicitly presupposes compliance with Section 63 (which defines types of secondary evidence) and the broader principles that:

there must be credible proof of the existence and execution of the original document; and
the party seeking to rely on a copy must show that it has done what is reasonably possible to produce the best available evidence.

B. The High Court’s Application of Section 65 to the Facts

1. No admission of the document, and no case that the plaintiff held the original

Justice Goel notes that:

The plaintiff never admitted the existence or execution of the alleged agreement dated 17.11.1991.
The defendant/petitioner did not claim that the plaintiff had the original in his possession.

This immediately eliminates some of the statutory gateways under Section 65, such as:

the gateway where the original is in possession of the person against whom the document is sought to be proved; or
the gateway where the opponent has admitted the existence/contents in writing.

Thus, the only possible avenue for the petitioner was the plea that the original had been lost while it was in the possession of Roshan Lal.

2. Failure to lay factual foundation: custody and loss of the original

The court finds a complete absence of supporting material to substantiate the petitioner’s claim that:

the original rent agreement had been duly executed between him and Roshan Lal; and
the original was in Roshan Lal’s possession and had been lost.

The trial court, whose reasoning the High Court endorses, noted that:

Not even an affidavit of Roshan Lal was produced to:
- admit the execution of the agreement, or
- explain how and when the original was allegedly lost.
The Section 65 application was not accompanied by any document that could corroborate the petitioner’s version.

Justice Goel underlines that “nothing prevented the petitioner to examine Roshan Lal as his witness”. Even if Roshan Lal were aged, the defendant could have moved an application to have his statement recorded through a Commissioner. The failure to take such basic steps undermines the credibility of the claim that the original was lost in Roshan Lal’s custody.

This reasoning reinforces an important evidentiary principle: mere assertions of loss or third-party custody are not enough; they must be substantiated by credible evidence.

3. Nature of the photocopy and the requirements for secondary evidence

The trial court also held, and the High Court agreed, that:

There was no material to show that the photocopy was a certified copy or a copy made from the original by a mechanical process ensuring accuracy.

This is central to the scheme of Sections 63 and 65:

Secondary evidence is not a free-for-all; not every photocopy automatically qualifies as acceptable secondary evidence.
The party must demonstrate that the copy itself satisfies the statutory description of permissible forms of secondary evidence.

The court therefore insists on a dual foundation:

Proof of circumstances justifying non-production of the original (Section 65), and
Proof that the copy itself is of a kind recognised by law as secondary evidence (Section 63).

4. Denial of execution by the plaintiff

The High Court notes that the execution of the alleged agreement dated 17.11.1991 was denied by the plaintiff. Where execution itself is denied, the court will require a stricter and clearer foundational showing before allowing a party to bypass primary evidence and rely on a copy.

Absent any testimony from Roshan Lal or other cogent evidence supporting execution, the court is not prepared even to permit the introduction of the copy as secondary evidence.

5. Delay and procedural abuse: the Section 65 application as a dilatory ploy

A crucial part of the reasoning is the court’s perception that the Section 65 application had a dilatory flavour:

The suit was filed in 2015.
Since 2019, the matter had been fixed for the defendant’s evidence.
By the time of the impugned order (2025), the defendant had examined only one witness, who:
- had no connection with the alleged 1991 agreement, and
- claimed that the defendant was himself the owner of the shop (which sits oddly with the admitted tenancy).
The Section 65 application was filed on 17.08.2022, long after the case had been set down for defence evidence (since 29.08.2019).

The High Court expressly observes that:

“All this demonstrates that the filing of the application was not only outside the purview of Section 65 of the Evidence Act but was also a ploy to delay the case…”

This language is important. It indicates that:

Civil courts are entitled to scrutinise timing and context of procedural applications to see whether they are being used to stall proceedings;
Even when a provision like Section 65 gives a party a substantive right in appropriate circumstances, that right cannot be used to defeat the overarching goal of timely adjudication.

6. No perversity: standard for interference with trial court orders

The High Court concludes that there is no perversity in the trial court’s order. “Perversity” in this context means a decision that:

ignores material evidence, or
rests on no evidence at all, or
is so unreasonable that no reasonable person would have arrived at it.

Having found that the trial court’s factual and legal assessment was sound, the High Court refused to interfere. Although the judgment does not explicitly state the jurisdictional footing (Article 227/Section 115 CPC etc.), CMPMO petitions in Himachal Pradesh typically invoke the High Court’s supervisory jurisdiction, where such a standard of perversity or patent illegality is commonly applied.

C. Precedents Cited

1. Express precedents in the judgment

The judgment, as provided, does not cite any reported case law by name. The court’s reasoning is primarily grounded in:

the text and structure of Section 65 of the Evidence Act; and
its assessment of the facts and procedural history of the case.

Accordingly, no specific prior decisions are relied on or discussed on the face of the judgment.

2. Consistency with broader Supreme Court jurisprudence (contextual note)

Although not referred to in the judgment itself, the reasoning in Vinod Kalia is consistent with the general approach of the Supreme Court to Section 65, which has repeatedly stressed that:

Secondary evidence is not admissible as a matter of course; the party must lay a factual foundation showing why primary evidence cannot be produced.
Mere production of a photocopy without proved loss, destruction, or other qualifying circumstance does not meet the statutory standard.
Courts should be vigilant about attempts to rely on unauthenticated copies to set up or displace important rights (such as ownership or tenancy).

The Himachal Pradesh High Court’s insistence on:

credible proof of loss and custody,
scrutiny of the nature of the copy, and
awareness of procedural abuse,

aligns with that larger jurisprudential trend, even though the court did not expressly invoke those authorities in this short oral order.

D. Legal Reasoning and Principles Emerging from the Judgment

1. Foundational requirement: Proof of existence and execution of the original

A central implicit principle is that secondary evidence presupposes the existence of a primary document. The party seeking secondary evidence must at least prima facie prove:

that such an original document existed; and
that it was duly executed by the alleged parties.

In Vinod Kalia:

The plaintiff denied the execution of the alleged 1991 agreement.
Roshan Lal, the alleged counter-party and custodian of the original, was not examined and did not even file an affidavit.

The court therefore appears to treat the petitioner’s burden of laying a threshold factual foundation as unsatisfied. Absent any corroboration from Roshan Lal or other credible testimony, the court was unwilling even to let the petitioner open the gate to secondary evidence.

2. Statutory conditions of Section 65 must be strictly proved

The High Court recites the core conditions under Section 65 and insists that these conditions:

“…can be allowed to be led provided the conditions mentioned therein are met.”

Key takeaways:

The burden is on the party seeking secondary evidence to bring their case squarely within one of the statutory exceptions.
An unproved assertion that the original is lost or with a third person is insufficient.
The court will examine whether the reasons for non-production of the original arise from that party’s own default or neglect; if they do, Section 65 cannot be invoked.

3. Due diligence duty: Use of available procedural tools (e.g., Commission for evidence)

The court’s remark that the petitioner could have:

examined Roshan Lal as a witness; or
applied for recording his evidence through a Commissioner if he was too old,

highlights a form of due diligence obligation:

Before invoking Section 65, the party must demonstrate that it has taken reasonable steps to obtain and present primary evidence or primary testimony.
Failure to use readily available procedural mechanisms (like examining a key witness, or recording his statement on commission) may indicate lack of bona fides or neglect.

This approach prevents Section 65 from being used as a shortcut, bypassing simple evidentiary steps that could prove or disprove the alleged document more directly.

4. Judicial control over procedural tactics and case-flow

The judgment also reinforces the judiciary’s role in controlling misuse of procedural applications:

Long delays (suit pending since 2015, defence evidence pending since 2019),
minimal progress (only one defence witness examined in years), and
late-stage applications (filed in 2022 without necessary foundational evidence)

led the court to conclude the application was a ploy to delay.

This aligns with contemporary judicial policy to:

curb docket congestion,
discourage frivolous interlocutory applications, and
ensure that substantive justice is not indefinitely postponed by tactical manoeuvres.

5. Limited scope of interference: No perversity, no revisional/supervisory correction

By concluding that there was no perversity in the trial court’s order, the High Court applies the established rule that supervisory jurisdiction is not an appellate jurisdiction:

The High Court does not re-weigh evidence or re-appreciate facts simply because another view is possible.
Interference is warranted only where the trial court’s order is:
- contrary to law,
- unsupported by any evidence, or
- manifestly unreasonable.

Here, the trial court’s reasoning was considered legally sound and factually supported, so the petition was dismissed without even issuing notice to the respondent.

E. Impact and Prospective Significance

1. Impact on landlord–tenant and ejectment litigation

In suits for ejectment or recovery of possession, parties often seek to rely on old rent agreements, many of which may be missing or only available as copies. This judgment sends a clear message:

Courts in Himachal Pradesh will demand strict compliance with Section 65 before admitting photocopies of such agreements.
Defendants cannot casually plead that originals are “lost” to introduce favourable documents belatedly, especially in long-pending suits.
Where a dispute centres on landlordship or ownership, courts will be particularly cautious about unauthenticated documents that could drastically alter the legal relationship.

2. Evidentiary practice: Raising the bar for secondary evidence applications

The decision will likely induce greater care among practitioners in:

Drafting Section 65 applications with detailed foundational pleadings (explaining loss, destruction, or custody);
Annexing supporting affidavits from persons allegedly holding or losing the original;
Ensuring that the proposed copy is one recognised by law as secondary evidence (e.g., certified copy, mechanical reproduction);
Taking timely steps to examine crucial witnesses or to have their evidence recorded on commission where necessary.

Trial courts may increasingly:

scrutinise the timing of Section 65 applications, and
reluctantly entertain them at very late stages without clear justification.

3. Systemic impact: Deterring delay tactics

By characterising the application as a dilatory ploy and upholding its rejection, the High Court reinforces a systemic message:

Procedural rights under the Evidence Act must be exercised in good faith,
Courts may draw adverse inferences from prolonged inaction followed by strategic applications, and
Higher courts will support trial courts that take a firm stance against unjustified delay.

In aggregate, such decisions contribute to more disciplined use of evidentiary and procedural tools, and promote timelier resolution of civil disputes.

IV. Complex Concepts Simplified

1. Primary vs. Secondary Evidence

Primary Evidence: The original document itself. For example, the original signed rent agreement.
Secondary Evidence: Copies or substitutes of the original permitted by law in certain situations, such as:
- certified copies,
- carbon copies made simultaneously,
- photocopies where authenticity is properly established, etc.

The law prefers primary evidence because it is the most reliable. Secondary evidence is exceptional and requires meeting specific conditions.

2. Section 65 of the Indian Evidence Act

Section 65 lists situations where secondary evidence is admissible. Some common grounds are:

The original is with the opposite party who refuses to produce it.
The original is destroyed or lost.
The original is of such a nature (e.g., public documents) that a certified copy is allowed by other provisions.
The party can’t produce the original for reasons beyond its own fault.

In each scenario, the party must:

plead clearly why the original cannot be produced, and
prove that explanation by evidence (witnesses, affidavits, documents).

3. “Perversity” in judicial review

When a higher court examines a lower court’s order in revision or supervisory jurisdiction, it often asks: Is the order “perverse”?

An order is “perverse” if:

it ignores material evidence,
is based on no evidence, or
is so unreasonable that no fair-minded judge could have made it.

If the lower court’s view is reasonably open on the evidence and the law, even if another view is possible, the higher court generally will not interfere.

4. Commissioner for recording evidence

Where a key witness is:

aged,
ill, or
unable to attend court,

civil procedure allows the court to appoint a Commissioner to record that witness’s evidence (for example, at home). This ensures important testimony is preserved without unduly burdening the witness.

In this case, the High Court points out that the petitioner could have used this mechanism to record Roshan Lal’s evidence if he was genuinely old or infirm, rather than resting on unsupported assertions.

5. “Certified copy” and “mechanical reproduction”

A certified copy is one issued by a public authority or court, certifying that it is a true copy of the original on record.
A copy produced by a mechanical process (like photocopying, scanning, carbon copying) can qualify as secondary evidence if it is shown that:
- it was made from the original, and
- the process reliably reproduces the original content.

The court in Vinod Kalia found no material to establish that the photocopy of the 1991 agreement satisfied either of these descriptions.

V. Conclusion

The judgment in Vinod Kalia v. Bhagwati Public Aushdhalaya is an important reaffirmation of two core ideas in evidentiary and procedural law:

Strict compliance with Section 65: Secondary evidence is an exception, not the norm. Before a party can rely on a photocopy or any other secondary form, it must:
- clearly prove the existence and execution of the original document,
- demonstrate the statutory ground (loss, destruction, opponent’s custody, etc.), and
- show that the copy itself fits within the permissible types of secondary evidence.
No tolerance for dilatory tactics: Courts are justified in viewing late, unsupported Section 65 applications in long-pending suits with suspicion. If such applications appear designed to delay the proceedings, trial courts may refuse them, and higher courts will ordinarily not interfere unless the refusal is plainly illegal or perverse.

In the broader legal context, this decision strengthens the integrity of the evidentiary process and reinforces judicial resolve to curb procedural abuse, particularly in landlord–tenant and possession disputes where delayed adjudication can itself become a form of injustice.