Himachal Pradesh HC Upholds Dismissal of Secondary Evidence Plea in Ejectment Suit, Citing Failure to Meet Statutory Requirements [Read Order]

Himachal: The Himachal Pradesh High Court, in a recent judgment, dismissed a petition challenging an order that rejected an application to lead secondary evidence in an ongoing ejectment suit. The court affirmed the findings of the learned Senior Civil Judge-Dehra, District Kangra, holding that the petitioner failed to satisfy the pre-conditions for admitting secondary evidence under Section 65 of the Indian Evidence Act, and further noted the application appeared to be a “ploy to delay the case.”

The petition, titled Shri Vinod Kalia vs. Bhagwati Public Aushdhalaya through Shri Rattan Chand Kalia, was filed by the defendant in the original suit, Shri Vinod Kalia, against the order dated 18.07.2025. The original suit, filed in the year 2015, is a suit for possession by way of ejectment from the suit land, where the plaintiff asserts ownership and claims the petitioner is a tenant. The defendant, while not denying his possession, denies his tenancy and claims to be the owner of the suit land.

The petitioner had sought leave of the Court to lead secondary evidence to prove a photocopy of a rent agreement dated 17.11.1991. The petitioner contended that the original agreement was executed between him and one Sh. Roshan Lal, who was in possession of the document but had since lost it.

The learned Trial Court had rejected the application, noting the lack of supporting foundational evidence. The Trial Court specifically held that “along-with the application, no document etc., like an affidavit of Roshan Lal was appended to demonstrate that indeed there was any agreement entered into between Roshan Lal and the present petitioner and that Roshan Lal was in possession of the original, which was lost.”

The Trial Court had also taken note of the delay in the proceedings. The original suit was filed in 2015, and the case had been listed for recording the evidence of the defendant/petitioner since 29.08.2019. Despite this, the application was filed on 17.08.2022, and till the passing of the impugned order, only one witness had been examined by the defendant, who “was not connected with agreement dated 17.11.1991 and had indeed deposed that the defendant was the owner of the shop.”

The High Court, presided over by Hon'ble Mr. Justice Ajay Mohan Goel, found “no infirmity in the order” passed by the Trial Court. The court specifically examined the requirements of Section 65 of the Evidence Act, noting that secondary evidence can be allowed only “provided the conditions mentioned therein are met.”

The judgment elaborated on the statutory conditions for admitting secondary evidence: “The conditions which are mentioned in Section 65 of the Evidence Act, inter alia, are that a party can be allowed to lead secondary evidence if the original is shown to be in possession or power of the person against whom such document is sought to be proved or any such person out of reach or not subject to the process of Court or 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 representatives etc. or when the original has been destroyed or lost or when the party offering evidence of its contents cannot for any other reason not arising out of its own default or neglect, produce it.”

The High Court emphasized the petitioner's failure to provide foundational evidence to satisfy these conditions. “Now in terms of the record, the existence of the document which the petitioner intends to prove by way of secondary evidence has neither been admitted by the plaintiff nor it is the case of the defendant that it is in possession of the plaintiff. The contention of the petitioner is that original document was in possession of one Roshan Lal with whom the petitioner had executed the same and Roshan Lal had lost it.”

The Court reiterated the Trial Court’s observation regarding the lack of evidence: “Now as has been observed by the learned Trial Court, a perusal of the record demonstrates that along-with the application filed under Section 65 of the Evidence Act, nothing was appended to demonstrate that indeed the original document was in possession of Roshan Lal, who had lost it. Not even an affidavit of Roshan Lal to this effect was appended. Nothing prevented the petitioner to examine Roshan Lal as his witness.”

The Court also addressed the petitioner's alternative argument, noting: “The contention that Roshal Lal is an aged person, cannot come to the rescue of the petitioner because if that was the case, the petitioner could have had moved an appropriate application to have the statement of Roshan Lal recorded by the appointment of a Commissioner.”

Concluding that the application was not only “outside the purview of Section 65 of the Evidence Act but was also a ploy to delay the case as it could not be demonstrated that indeed the application was filed after 3 years since time was being granted to the defendant/petitioner to lead evidence,” the High Court found no perversity in the impugned order and dismissed the petition.

• Case Name: Shri Vinod Kalia vs. Bhagwati Public Aushdhalaya through Shri Rattan Chand Kalia
• Case Number: CMPMO No. 650 of 2025
• Decided on: 11.11.2025
• Citation: 2025:HHC:37848
• Court: High Court of Himachal Pradesh at Shimla
• Coram: Hon'ble Mr. Justice Ajay Mohan Goel, Judge
• Order Assailed: Order dated 18.07.2025, passed by learned Senior Civil Judge-Dehra, District Kangra, H.P., in CMA No. 1096/24
• Advocate for Petitioner: Mr. Nitin Soni, Advocate
• Advocate for Respondent: Notice not issued.

[Read Order]