Context: I have filed a suit for declaration against a PSU about 10 years back in lower court .I have asked for certain documents under order 11 rule 12 and 14 and section 151. In response to my application, the defendant has filed an affidavit stating that: since the documents are quite old, these are not available with defendant. The old documents are destroyed as per circulars. Hence the defendant is unable to produce the Documents. The affidavit appears to be evasive. Deponent has not defined what is meant by old and what is the circular that authorizes to destroy and the procedure therefor. There are 2 categories of documents: 1. Signed orders, the contents of which are in handwriting of some official. The order was written in a register of orders maintained for this purpose and my marking of receipt noted thereon. A photocopy of the respective page was given to me on demand. 2. Documents mentioned in my plaint or replication . Now one of the alternatives before me is to adduce secondary evidence and document mentioned above at number 1 is important and as mentioned above, it is signed by an official and contents are in the handwriting of some official. Someone has recently told me that documents connected with the court case are not destroyed and there cannot be any circular for destruction of such documents. Question: 1) In such a situation, do I have to lay foundation for the existence of this document in my application for secondary evidence, and if so how? If not, on what ground? 2) What other recourse is available to me?
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1) it is correct that documents connected to court case are not destroyed
2) if original documents are not traceable you can rely upon xerox copy of documents
3) you can lead secondary evidence that originals were with defendant but they have failed to produce originals on grounds that originals have been destroyed
1) In such a situation, you will have to lay foundation for the existence of this document in your application for secondary evidence. You will have to provide evidence to prove that the document existed at the time when it was relevant and that it was in the possession of the defendant. This can include affidavits from witnesses who saw the document, or other evidence such as emails or other correspondence that can prove that the document existed and was with the defendant.
2) If you cannot provide evidence that the document existed and was in the possession of the defendant, then you may be able to rely on other methods of proof such as circumstantial evidence and oral testimony. You may also be able to submit expert opinion to prove the contents of the document. You may also be able to seek an amendment to your suit so that you can seek a declaration based on the evidence you do have..
1. The photocopy of the document produced before court by the defendant becomes the primary evidence because of the fact that it is admitted by them.
2. If the opposite party is expressing their inability to produce the said documents, you can extract the details of the reasons they rely upon during cross examination and establish your case.
You can lead secondary evidence in the said case. You don't require leave of court also for the same.
Dear client,
In response to your first question, if the original document is not available, you may have to lay the foundation for the existence of the document before you can rely on secondary evidence. To lay the foundation, you may need to establish the following:
That the original document existed.
That the document was in the possession of the defendant.
That the defendant has failed to produce the document despite being asked to do so.
You may be able to establish the existence of the document through other evidence, such as testimony from witnesses who have seen or used the document, or through circumstantial evidence. Once you have established the foundation, you may be able to rely on secondary evidence, such as a photocopy or a copy of the document obtained from another source.
As for your second question, you may want to consider seeking the assistance of a lawyer to explore other legal remedies that may be available to you. For example, you may want to consider filing an application for the court to compel the defendant to produce the documents, or seeking a court order for the defendant to pay damages for failing to produce the documents. A lawyer can help you assess your options and determine the best course of action.
