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Indian Evidence Act, 1872; Ss. 63 and 65(a): Secondary evidence-Photocopies of documents-Admissibility in evidence-Requirement of-Held: Secondary evidence admissible only in the absence of primary evidence when proper explanation of its absence is given-It is necessary for the party to prove existence and execution of the original document-Thus, photocopies of documents could be admitted in evidence as secondary evidence subject to fulfillment of certain conditions as laid down under Section 65-Since the conditions are not satisfied, the documents in question cannot be admitted as secondary evidence. The question which arose for consideration in this appeal was as to whether photocopies of the documents could be received as an evidence under the head `secondary evidence’ without complying with the requirement of Section 65 of the Indian Evidence Act. Appellant contended that the High Court could not have ignored the mandatory requirements as contemplated under Section 63 of the Act more specifically when the Section provides that when the copies made from the evidence can be adduced as secondary evidence; and that the mandatory prescriptions in Section 65(a) of the Act have been lost sight of. =Dismissing the appeal, the Court HELD: 1.1. Secondary evidence, as a general rule, is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to b valid, the same party is not entitled to introduce secondary evidence of its contents. [Para 7] [370-E] 1.2. Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 of the Evidence Act is exhaustive as the Section declares that secondary evidence “means and includes” and then follow the five kinds of secondary evidence. [Para 8] [370-F] 1.3. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64 of the Act, documents are to be provided by primary evidence. Section 65 of the Act, however, permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section. [Para 9] [370-H; 371-A, B] Ashok Dulichand v. Madahavlal Dube and Anr., [1975] 4 SCC 664, relied on. 2. Only when conditions prescribed in Section 65 of the10 Act are satisfied, documents can be admitted as secondary evidence. In the instant case, clause (a) of Section 65 of the Act has not been satisfied. Therefore, the High Court’s order does not suffer from any infirmity to warrant interference. [Para 10] [372-C] Bina Madhavan (for M/s. Lawyer’s Knit & Co.), for the Appellant. M.N. Rao, Prakash Rao and Promila for the Respondent.

CASE NO.:
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Appeal (civil) 2060 of 2007

PETITIONER:
Smt. J. Yashoda

RESPONDENT:
Smt. K. Shobha Rani

DATE OF JUDGMENT: 19/04/2007

BENCH:
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT:
J U D G M E N T
(Arising out of S.L.P. (C) No.12625 of 2005)

Dr. ARIJIT PASAYAT, J.

Leave granted.

Challenge in this appeal is to the judgment rendered by a 
learned Single Judge of the Andhra Pradesh High Court 
allowing the civil revision petition filed. Challenge in the said 
petition was to the order dated 3.11.2003 in OS No. 30 of 
1999 on the file of learned First Additional Chief Judge, City 
Civil Court, Secunderabad wherein document Exh. B-1 to B-8 
were marked and taken as secondary evidence. The challenge 
in the civil revision was that the aforesaid documents could 
not have been marked and taken as secondary evidence since 
they are photo copies. 

Learned Single Judge held that the documents which 
were sought to be received and marked as secondary evidence 
are photo copies. It was noted that it may be a fact that the 
original of the documents are not available with the parties 
but at the same time the requirement of Section 63 of the 
Indian Evidence Act, 1872 (in short the 'Act') is that a 
document can be received as an evidence under the head of 
secondary evidence only when the copies made from or 
compared with the original are certified copies or such other 
documents as enumerated in the above section. The High 
Court found the photo copies can not be received as secondary 
evidence in terms of Section 63 of the Act and they ought not 
to have been received as secondary evidence. Since the 
documents in question were admittedly photo copies, there 
was no possibility of the documents being compared with the 
originals. Accordingly the Civil Revision was allowed.

Learned counsel for the appellant submitted that a rigid 
view has been taken by the High Court. The High Court could 
not have ignored the mandatory requirements as contemplated 
under Section 63 of the Act more specifically when the Section 
provides that when the copies made from the evidence can be 
adduced as secondary evidence. It was further submitted that 
the mandatory prescriptions in Section 65(a) of the Act have 
been lost sight of.

 Learned counsel for the respondent on the other hand 
supported the judgment of the High Court stating that the 
requirement of Section 65(a) have not been fulfilled in this 
case and the High Court rightly held that the documents could 
not have been accepted as secondary evidence.

In order to consider rival submissions it is necessary to 
take note of Sections 63 and 65 (a). Sections 63 and 65(a) 
reads as follows:

"63 : Secondary evidence  Secondary evidence 
means and includes 
(1) certified copies given under the provisions 
hereinafter contained;
(2) copies made from the original by mechanical 
processes which in themselves ensure the accuracy of 
the copy and copies compared with such copies;
(3) copies made from or compared with the 
original;
(4) counterparts of documents as against the 
parties who did not execute them;
(5) oral accounts of the contents of a document 
given by some person who has himself seen it.
65. Cases in which secondary evidence relating to 
documents may be given  Secondary evidence may be 
given of the existence, condition, or contents of a 
document in the following cases:-
(a) When the original is shown or appears to 
be in the possession or power- of the person against 
whom the document is sought to be proved or of 
any person out of reach of, or not subject to, the 
process of the Court, or of any person legally bound 
to produce it, and when, after the notice mentioned 
in Section 66, such person does not produce it."

Secondary evidence, as a general rule is admissible only 
in the absence of primary evidence. If the original itself is 
found to be inadmissible through failure of the party, who files 
it to prove it to be valid, the same party is not entitled to 
introduce secondary evidence of its contents.

Essentially, secondary evidence is an evidence which may 
be given in the absence of that better evidence which law 
requires to be given first, when a proper explanation of its 
absence is given. The definition in Section 63 is exhaustive as 
the Section declares that secondary evidence "means and 
includes" and then follow the five kinds of secondary evidence. 

The rule which is the most universal, namely that the 
best evidence the nature of the case will admit shall be 
produced, decides this objection that rule only means that, so 
long as the higher or superior evidence is within your 
possession or may be reached by you, you shall give no 
inferior proof in relation to it. Section 65 deals with the proof 
of the contents of the documents tendered in evidence. In 
order to enable a party to produce secondary evidence it is 
necessary for the party to prove existence and execution of the 
original document. Under Section 64, documents are to be 
provided by primary evidence. Section 65, however permits 
secondary evidence to be given of the existence, condition or 
contents of documents under the circumstances mentioned. 
The conditions laid down in the said Section must be fulfilled 
before secondary evidence can be admitted. Secondary 
evidence of the contents of a document cannot be admitted 
without non-production of the original being first accounted 
for in such a manner as to bring it within one or other of the 
cases provided for in the Section. In Ashok Dulichand v. 
Madahavlal Dube and Another [1975(4) SCC 664], it was inter 
alia held as follows:

"After hearing the learned counsel for the 
parties, we are of the opinion that the order of 
the High Court in this respect calls for no 
interference. According to clause (a) of Section 
65 of Indian Evidence Act, Secondary evidence 
may be given of the existence, condition or 
contents of a document when the original is 
shown or appears to be in possession or power 
of the person against whom the document is 
sought to be proved or of any person out of 
reach of, or not subject to, the process of the 
Court of any person legally bound to produce 
it, and when, after the notice mentioned in 
Section 66 such person does not produce it. 
Clauses (b) to (g) of Section 65 specify some 
other contingencies wherein secondary 
evidence relating to a document may be given, 
but we are not concerned with those clauses 
as it is the common case of the parties that the 
present case is not covered by those clauses. 
In order to bring his case within the purview of 
clause (a) of Section 65, the appellant filed 
applications on July 4, 1973, before 
respondent No. 1 was examined as a witness, 
praying that the said respondent be ordered to 
produce the original manuscript of which, 
according to the appellant, he had filed 
Photostat copy. Prayer was also made by the 
appellant that in case respondent no. 1 denied 
that the said manuscript had been written by 
him, the photostat copy might be got examined 
from a handwriting expert. The appellant also 
filed affidavit in support of his applications. It 
was however, nowhere stated in the affidavit 
that the original document of which the 
Photostat copy had been filed by the appellant 
was in the possession of Respondent No. 1. 
There was also no other material on the record 
to indicate the original document was in the 
possession of respondent no.1. The appellant 
further failed to explain as to what were the 
circumstances under which the Photostat copy 
was prepared and who was in possession of 
the original document at the time its 
photograph was taken. Respondent No. 1 in 
his affidavit denied being in possession 
appeared to the High Court to be not above 
suspicion. In view of all the circumstances, 
the High Court to be not above suspicion. In 
view of all the circumstances, the High Court 
came to the conclusion that no foundation had 
been laid by the appellant for leading 
secondary evidence in the shape of the 
Photostat copy. We find no infirmity in the 
above order of the High Court as might justify 
interference by this Court."

The admitted facts in the present case are that the 
original was with one P. Srinibas Rao. Only when conditions 
of Section prescribed in Section 65 are satisfied, documents 
can be admitted as secondary evidence. In the instant case 
clause (a) of Section 65 has not been satisfied. Therefore, the 
High Court's order does not suffer from any infirmity to 
warrant interference. 

The appeal fails and is dismissed but in the 
circumstances without any order as to costs.

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