Madhya Pradesh High Court Refuses Secondary Evidence Plea, Says Evidence Act Requirements Must Be Met

The Madhya Pradesh High Court has refused to interfere with an order of the Commercial Court at Jabalpur which denied a request to lead secondary evidence in a commercial dispute involving infrastructure company Sai Dutt Infra Pvt Ltd and the National Highways Authority of India.

A division bench of Justice Vivek Rusia and Justice Pradeep Mittal held that the petitioner had failed to satisfy the statutory conditions required for producing secondary evidence under the Indian Evidence Act, 1872, and therefore the Commercial Court was justified in rejecting the application filed by the company before it.

The petition had been filed by Sai Dutt Infra Pvt Ltd challenging the order dated July 25, 2023 passed by the 24th District Commercial Court, Jabalpur in a civil commercial suit where its application under Sections 65 and 66 of the Evidence Act had been rejected by the trial court.

According to the petitioner, several original documents relevant to the dispute were either lost or remained in possession of the defendants including a board resolution, a bank guarantee submitted as security deposit, the letter of award issued in October 2019 and certain subsequent correspondence relied upon in the suit proceedings.

The company therefore sought permission from the Commercial court to produce copies of these documents as secondary evidence or alternatively requested that the defendants be directed to produce the original documents which according to the petitioner were in their possession and necessary for proving the contractual dispute before the court.

However, the Commercial court rejected the application observing that the plaintiff had not demonstrated that any effort was made to obtain the original documents from the defendants in accordance with law nor had any formal notice to produce such documents been issued to the defendants before filing the present application.

Examining the challenge to that order, the High court referred to Section 65 of the Indian Evidence Act which specifies the limited circumstances in which secondary evidence relating to a document may be permitted to be produced before a court of law during trial or other judicial proceedings before it.

The bench noted that the provision clearly requires a party seeking to rely on secondary evidence to first establish that the original document is in possession of the opposite party or has been lost or destroyed without fault or negligence of the party seeking to rely upon such evidence in.

Quoting the statutory requirement, the court observed that secondary evidence may be given when the original appears to be in possession of the person against whom the document is sought to be proved and such person fails to produce it despite notice issued under Section 66 of the Evidence Act.

“In the present case no evidence has been produced to establish these facts and no notice was issued to the defendants to produce the original documents,” the court recorded while affirming the reasoning adopted by the Commercial court in the impugned order under challenge before the High court.

The court further noted that where a party believes that relevant documents are in possession of another party the proper course is to invoke the procedure provided under the Code of Civil Procedure for summoning documents through appropriate orders of the trial court during the course of the proceedings concerned.

Referring to Order XVI Rule 6 of the Civil Procedure Code, the bench observed that a person may be summoned specifically to produce documents and compliance with such summons would enable the court to examine the original material relevant to the dispute between the parties in the pending civil suit.

Holding that the petitioner had not complied with the mandatory requirements under the Evidence Act and had also failed to adopt the appropriate procedure under the Civil Procedure Code, the High court found no infirmity in the impugned order and dismissed the petition filed against the Highways Authority of India.

Case Title: Sai Dutt Infra Pvt Ltd Thr Shri Chirag Prakash Parmar v. National Highway Authority of India and Others

Date of Order: February 26, 2026

Bench: Justice Vivek Rusia and Justice Pradeep Mittal