Bombay High Court

SARJAN REALITIES LTD THROUGH ITS AUTHORISED REPRESENTATIVE M S BORSEversusASHA BABAN @ BABLOO RAKSHE AND OTHERS

Disposal: DISPOSED OFF

Holding

The admissibility of secondary evidence cannot be decided at the threshold; the trial court must first allow the party to establish foundational facts before deciding on its admissibility.

Summary

Sarjan Realities Ltd, the original defendant in a civil suit, filed a writ petition challenging a trial court order that rejected its application to lead secondary evidence under Section 65 of the Indian Evidence Act. The trial court had held that the requisite foundational facts for secondary evidence were absent. The High Court observed that the admissibility of secondary evidence cannot be decided at the threshold without giving the party an opportunity to establish those foundational facts on record and to allow the opposite side to cross‑examine. Consequently, the petition was partly allowed, directing the trial court to permit the petitioner to introduce foundational facts during its evidence and to decide on the admissibility of secondary evidence after proper appreciation of those facts. The impugned order was held not to preclude the petitioner from establishing the necessary foundation.

Issues considered

Whether a trial court can reject an application to lead secondary evidence under Section 65 of the Indian Evidence Act without first allowing the party to establish foundational facts.

Legislation cited

Indian Evidence Act, 1872 — s. 65

Subjects

secondary evidence
Indian Evidence Act
foundational facts
civil suit
writ petition
evidence admissibility

Judgment

2026:BHC-AUG:37312


                      IN THE JUDICATURE OF HIGH COURT AT BOMBAY
                                 BENCH AT AURANGABAD

                            903 WRIT PETITION NO. 9601 OF 2017

            Sarjan Realities Ltd Through Its Authorised Representative M S Borse
                                           VERSUS
                          Asha Baban @ Babloo Rakshe And Others

                                                  ...
                Advocate for the Petitioner : Senior Counsel Mr. Katneshwarkar P. R.
                     Advocate for Respondents : Mr. Solanke Shrikrashna B.
                                                  ...

                                  CORAM      : ROHIT W. JOSHI, J.
                                  Dated      : August 19, 2026

           PER COURT :-

           1.      The present petition takes exception to the order dated

           22/11/2016 passed by learned 2nd Joint Civil Judge, Junior Division,

           Parner, Taluka Parner, District Ahmednagar, rejecting application at

           Exhibit 43 in Regular Civil Suit No.399 of 2014.



           2.      The said application was filed by present petitioner/original

           defendant seeking permission to lead secondary evidence in respect of

           certain documents. Learned Trial Court rejected the application on the

           ground that necessary ingredients, as contemplated under Section 65

           of Indian Evidence Act, for making secondary evidence admissible in

           evidence were absent.



           3.      It is now well settled that, in order to make secondary evidence

           admissible in evidence, foundation facts are required to be proved by


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                                                            903 WP 9601-2017



party intending to lead such secondary evidence. This can be done

by introducing necessary foundational facts during course of

evidence. Other side is also entitled to cross-examine party intending

to lead secondary evidence or witnesses examined on behalf of such

party, in respect of such foundational facts.



4.    In that view of the matter, issue regarding admissibility of

secondary evidence cannot be decided at threshold without affording

an opportunity to party seeking to lead such evidence to establish

necessary foundation facts. Question as to whether such secondary

evidence can ultimately be admitted in evidence would have to be

considered by learned Trial Court after opportunity to establish

foundational facts on record is given and after giving due opportunity

to other side to contest its admissibility.



5.    In view of aforesaid, petition is partly allowed.



6.    Present petitioner /original defendant in civil suit, is permitted

to introduce necessary foundational facts during course of its

evidence. The learned Trial Court shall consider whether permission

to lead secondary evidence can be granted in accordance with law,

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                                                           903 WP 9601-2017



upon appreciation of evidence relating to foundational facts.



7.       Impugned order dated 22/11/2016 shall not come in way of

present petitioner in establishing necessary foundational facts. Issue

regarding admissibility of secondary evidence will be decided by

learned Trial Court independently.




                                             ( ROHIT W. JOSHI, J. )




vj gawade/-.




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