1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA OMP No. 555 of 2025 in C.S. No.80 of 2010 Reserved on : 4.5.2026 Decided on: 19.5.2026 Manorma Sharma … Plaintiff/applicant Versus Food Corporation of India & others …Defendants/non-applicants _____________________________ ______________ Coram Hon’ble Mr. Justice Virender Singh, Judge Whether approved for reporting? ___________________________________________________ For the Applicant: Mr. R.K. Bawa, Senior Advocate, assisted by Mr. Vijay Chaudhary, Advocate. For the non-applicants : Mr. Y.P. Sood, Advocate, for non- applicants No. 1 and 2. Mr. Nikhil Chandel, Advocate vice Mr. Shiv Pal Manhans, Senior Panel Counsel, for non-applicant No. 3. Virender Singh, Judge Applicant Manorma Sharma has filed the present application under Section 60 of the Bharatiya Sakshya Adhiniyam, 2023, to permit her to lead secondary evidence to prove the photographs Marks A-1 to A-26. 2. According to the applicant, her statement was recorded on 6.12.2024, in which, she has produced the photographs Marks A-1 to A-26, which were not exhibited. She has pleaded that the photographs were clicked by her with the mobile phone long time back and now, the said 2 mobile phone has been damaged, and presently, the sim is not usable. 3. According to the applicant, original photographs taken on the mobile phone, and the mobile phone, from which, the photographs were clicked, are not available, as such, she be permitted to lead the secondary evidence to prove the photographs. 4. In addition to this, she has pleaded that if, the photographs are permitted to be proved by leading the secondary evidence, no prejudice will be caused to the non- applicant/defendant. 5. On the basis of above facts, Mr. R.K. Bawa, learned Senior counsel, assisted by Mr. Vijay Chaudhary, Advocate, has prayed that the application may kindly be allowed. 6 When, put to notice, the application has been contested by taking the plea that the documents cannot be exhibited, as the documents have not been proved, in accordance with law. Moreover, the applicant is stated to have not produced any record to show as to which, mobile phone was used for clicking the said photographs. 7. Applicant/plaintiff has filed the rejoinder, denying the stand, as taken in the reply to the application, by virtue 3 of which, the application has been contested by re-asserting the stand, as taken in the application. 8. On the basis of pleadings of the parties, the following issues were framed on 27.6.2025: 1. Whether the photographs mark A-1 to A-26 are the copies of the photographs clicked from the mobile of the plaintiff-applicant, as alleged? OPA 2. Whether the mobile of the plaintiff-applicant has been damaged, as alleged, if so its effect? OPA 3. Relief. 9. Thereafter, the parties to the lis were directed to adduce evidence. REASONS FOR FINDINGS Issues No. 1 & 2 10. Both these issues are interlinked and interconnected, as the same set of evidence is required to be discussed, as such, both are taken up together. 11. Onus to prove issues No. 1 and 2 is upon the applicant. In order to prove the said issue, the applicant appeared in the witness box as AW-1 and deposed that she had clicked the photographs with her mobile phone, but the phone fell into water in 2023. She has clicked the photographs with the said mobile phone, which have been marked as Marks A-1 to A-26. 12. In the cross-examination, the applicant has admitted that when, her statement was recorded on 6.12.2024, she 4 had not disclosed the fact that her phone was damaged, with which, she had clicked the photographs marks A-1 to A-26, nor she could spell out the exact date, when, the mobile phone was damaged, but according to her, the said incident had taken place, in the month of December, 2023. The photographs were clicked from the year 2014 to 2023. After clicking the photographs, the same were developed in a shop at Mall Road, Shimla. 13. She has admitted that she has moved an application bearing registration No. 144 of 2025 with a prayer to exhibit the photographs Mark A-1 to A-26. She could not disclose about her mobile number. She has admitted that the mobile phone was not got checked from the mechanic or from the authorized service station of Samsung. She has denied rest of the suggestions. 14. To rebut this evidence, defendants/non-applicants have examined Sriram Martolia, AGM (HK). In the cross- examination, this witness has identified the photographs Marks A-1 to A-26, except Marks A-6 and A-10, which are photographs of the premises in question. The photographs except Mark A-6 and Mark A-10 are exhibited as Exts. PX-1 to PX-24. 15. This is the entire evidence, led by the parties. 5 16. The perusal of the record shows that after framing the issues in the main case, evidence of the plaintiff was closed after examining as many as 10 witnesses, including herself. In her statement, while appearing as PW-10, she has marked the photographs of the premises, as Marks A-1 to A- 26. She has categorically stated that these photographs were clicked by her. A suggestion was given to her qua the fact that photographs A-1 to A-26 are not of the premises. 17. The plaintiff has filed the suit for recovery of rent and use and occupation charges, against the defendants. In the present case, the said photographs have been relied upon by the applicant, while appearing in the witness box as PW- 10. 18. After the issues were framed in the application, the applicant appeared in the witness and deposed as per the stand taken in the application. Thereafter, respondents examined AGM (HK) FCI, Regional Office, New Shimla, who has admitted that, except photographs Marks A-1 and A-10, all the photographs are of the premises in question. These photographs were identified by RW-1 in his cross- examination and the cross-examination is not confined only to the main issue. When, the witness of the respondents admitted that the photographs are of the premises, except 6 photographs Mark A-1 and Mark A-10, then, the objection raised by the respondents, qua exhibiting the photographs as Exts. PX-1 to Ext. PX-24, is not sustainable in the eyes of law. 19. By way of present application, a prayer has been made to permit the applicant to prove the photographs by leading additional evidence. So far as the arguments of learned counsel for the respondents, qua the fact that sine- qua non for considering the application for secondary evidence, is existence of the original, is concerned, the existence of the original has been probabilized by the applicant, when, she has pleaded that photographs were clicked by her with her mobile phone, which has been damaged. 20. Considering the low legal literacy of the Indian masses, it cannot be accepted from a Senior Citizen, aged about 70 years, to keep the details of the mobile phone, as well as, the sim used in the said phone. The stand of the applicant is to be seen on the touchstone of preponderance of probabilities. Once, she has taken the stand that her mobile phone was damaged, with which, she had clicked the photographs Marks A-1 to Mark A-26, then the ingredients of 7 Section 65 of the Indian Evidence Act (now, Section 60 of BSA), are duly fulfilled in the present case. 21. Moreover, the photographs have not been disputed by RW-1. As such, both the issues are decided in favour of applicant. Relief 22. In view of the findings recorded on issues No. 1 and 2, the application, under consideration is allowed and the applicant is permitted to prove the photographs, which, although have been exhibited as Ext. PX-1 to PX-24, as well as, Mark A-1 and Mark A-10, by way of secondary evidence. 23. The application is, thus, disposed of. C.S. No. 80 of 2010 25. List on 1.6.2026 for the evidence of plaintiff before the Registrar (Judicial). (Virender Singh) Judge 19.5.2026 Kalpana