Subsequent filing of a Section 65B affidavit is procedural and not barred by res judicata.

The plaintiff sought permission to file an affidavit under Section 65B of the Indian Evidence Act, 1872, corresponding to Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 (“BSA”), in respect of documents identified in paragraph 5 of the application as Annexure “E”.

In an earlier application, IA No. GA-COM/5/2025, the Court had permitted the plaintiff to file a similar affidavit restricted to two documents; that affidavit had been filed and admitted in evidence during the plaintiff’s witness’s examination-in-chief.

The defendant opposed the application, contending that it was barred by res judicata or constructive res judicata, and arguing that permitting the affidavit could create evidentiary conflict requiring recall of witnesses.

The Court applied Section 65B of the Indian Evidence Act, 1872, corresponding to Section 63 of the BSA, governing the admissibility of electronic evidence and the supporting certificate or affidavit.

It considered the doctrines of res judicata and constructive res judicata, under which matters directly and substantially decided, or matters that ought to have been raised in earlier proceedings, may be barred from subsequent consideration.

The defendant relied on Satyadhyan Ghosal v. Deorajin Debi, AIR 1960 SC 941, concerning the principle of res judicata, and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, concerning the requirements and procedural aspects of Section 65B certification.

The Court held that a direction permitting the filing of a Section 65B affidavit is procedural, does not determine the parties’ substantive rights, and does not adjudicate any res between them.

The earlier order concerned only two specified documents, whereas the present application related to other documents and therefore did not seek reconsideration of an issue already finally adjudicated.

Since the earlier direction was procedural and the suit remained pending for final trial, it neither determined the parties’ rights nor attracted res judicata or constructive res judicata.

The Court further held that the filing of the affidavit was a procedural step that could not, in the circumstances, be denied.

Any alleged conflict in evidence, defect in recording evidence, or other procedural or evidentiary objection could be recorded during trial and adjudicated at the stage of final hearing, rather than being treated as a bar to filing the affidavit.

Accordingly, the authorities relied upon by the defendant did not apply to the facts of the case.

The affidavit was to be filed within two weeks from the date of the order.

The defendant was given liberty to raise any objection regarding the affidavit or the recording of evidence at the final hearing of the suit.

IA No. GA-COM/7/2026 was disposed of without costs.