When court can permit adducing secondary evidence?

Since the existence of such
documents is not disputed,
secondary evidence can be permitted in terms of Section 65(b) of the
Evidence Act. No doubt, the respondent has challenged the veracity
and the contents of such documents, which aspects are left open to
be examined by the learned Judge on its own merits, at the time of
appreciation of the evidence in the suit.
Merely allowing to lead
secondary evidence, by itself, would not establish that the petitioner
has proved the authenticity and/or contents of such documents.

IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 214/2014
Fairway Barge Operators Pvt. Ltd.,

V E R S US
M/s. J & L Marine Services, a Company

CORAM :- F.M. REIS, J.
Date :- 21st August, 2014.
Citation;AIR 2015(NOC)155 Bom

Heard Shri Menino Pereira, learned Counsel appearing for
the petitioner and Mr. E. O. Mendes, learned Counsel appearing for
the respondent.
2. Rule.
Heard forthwith with the consent of the learned
Counsel. Learned Counsel appearing for the respondent waives
notice.
3.
Upon hearing the learned Counsel and on perusal of the
record, the short point which requires consideration is, whether the
learned Judge was justified to pass the impugned order dated 11 th
March, 2014, dismissing the application filed by the petitioner to lead
secondary evidence? The learned Judge has passed the impugned order
essentially on the ground that the petitioner has not explained the
whereabouts of the originals of such documents. It is not disputed by
Shri Mendes, learned Counsel appearing for the respondent that though
the originals of such documents were not produced, nevertheless, the
notarized certified copies of such
documents were produced along
with the plaint. The record also reveals that the existence of such

documents has not been disputed by the respondent, though the
veracity of such documents is being disputed by the respondent.
Section 65(b) of The Indian Evidence Act, 1872 reads thus :
“65. (b) when the existence, condition or contents
of the original have been proved to be admitted in
writing by the person against whom it is proved or
by his representative in interest;"
4.
Since the existence of such
documents is not disputed,
secondary evidence can be permitted in terms of Section 65(b) of the
Evidence Act. No doubt, the respondent has challenged the veracity
and the contents of such documents, which aspects are left open to
be examined by the learned Judge on its own merits, at the time of
appreciation of the evidence in the suit.
Merely allowing to lead
secondary evidence, by itself, would not establish that the petitioner
has proved the authenticity and/or contents of such documents.
5.
Keeping such issues open, I find that the impugned order
passed by the learned Judge dated 11 th March, 2014 deserves to be
quashed and set aside. The petitioner is permitted to lead secondary
evidence with regard to the Agreements dated 14 th March, 2008 and

24th March, 2008. Subject to keeping the issue with regard to the
contents or veracity of such documents open, to be examined on its
own merits, the petition stands disposed. Rule stands disposed of
accordingly.
F.M. REIS, J.
ssm.

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