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CASE NO.: 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

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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 \026 Secondary evidence  means and includes \026 (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 \026 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

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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

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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.