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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