Judgment:
Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties.
2. The petitioners - original defendants are taking exception to the order dated 27.02.2012, below application Exhibit-118 in Regular Civil Suit No.415/2010.
3. Respondent No.1 - original plaintiff instituted suit claiming decree of perpetual injunction against petitioners- original defendants restraining them from obstructing plaintiff's work of laying underground pipeline through G.No.7 to G.No.18.
4. It is not necessary to go into factual details of the matter. During the course of cross examination of the witness for defendants, plaintiff's Counsel confronted the witness with document styled as consent deed dated 23.08.1997. The witness for defendants stated that the document does not bear signature of his father. Since the document was shown to the witness, a request was made by Counsel for the plaintiff to exhibit the document. The request made on behalf of the plaintiff was objected by defendants contending that the document shown to the witness is a photostat copy of the consent deed and that the witness has refused to identify signature of his father. It is contended that since the evidence being produced is in the nature of secondary evidence, unless requirement in respect of production of secondary evidence is met, it would not be open for the plaintiff to produce the document on record and same cannot be exhibited. An application objecting to exhibit the document was tendered by Counsel for defendants. However, learned Trial Judge overruled the objection and directed exhibition of the document.
5. It is the contention of petitioners - original defendants that the document sought to be produced is a photostat copy of consent deed. The same has not been established in accordance with provisions of Evidence Act. The contents of the document have not been proved and as such, copy of the document cannot be marked exhibit.
6. Learned Counsel appearing for Respondent No.1-original plaintiff contends that since the witness for defendants is confronted with the document and since the plaintiff is placing reliance on the document sought to be produced in evidence, same is required to be marked exhibit. Respondent-plaintiff supports order passed by the trial Court and prays for dismissal of the writ petition.
7. Section 63 of the Evidence Act defines secondary evidence which means and includes:-
"1) certified copies given under the provisions hereinafter contained;
2) copies made from the original by mechanical process which in themselves ensure the accuracy of the copy, and copies compared with such copy;
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."
8. In the instant matter, the document sought to be produced is photostat copy of the consent deed. Thus, a copy made from or compared with original can be construed as a secondary evidence. In the instant case, there is no material placed on record to arrive at a conclusion that the copy sought to be produced on record is compared with the original and that the contents thereof are also proved. The contents of the document have not been proved, however, witness for defendants has denied the signature as that of his father, appearing on the document.
9. Section 65 of the Evidence Act provides for the cases in which secondary evidence relating to documents may be given. It is provided that 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 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;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it on reasonable time;
10. In the instant matter, it is not the case of either of the parties, that existence, condition or contents of the original have been proved to be admitted by the person against whom it is sought to be proved. The defendants have not admitted existence, condition or contents of the original. It was, therefore, incumbent upon the plaintiff to prove that original has been destroyed or lost and further that the plaintiff, for any other reason not arising from his own default or neglect, unable to produce it in reasonable time. The plaintiff is expected to prove loss or destruction of the original and further that for the reason not arising from his own default or neglect, he is not able to produce the same. It is to be noted that unless the prerequisites laid down under Section 65 of the Evidence Act are fulfilled, plaintiff is precluded from giving secondary evidence in respect of the document. The document sought to be produced by the plaintiff is admittedly a photostat copy. It has not been established that in spite of best efforts on the part of plaintiff, he is unable to produce the original nor it has been established that contents of the photostat copy are compared with the original nor the plaintiff has established contents of the document. The plaintiff has also failed to prove the loss or destruction of the original nor he has contended that the original is in possession of his adversary. In these circumstances, it was not permissible for the trial Court to mechanically exhibit the document. The order passed by the trial Court is in ignorance of provisions of Sections 63 and 65 of the Evidence Act.
11. Reliance is placed on the judgment in the matter of M. Chandra V. M. Thangmuthu and another, reported in AIR 2011 SC 146. In election petition, a certificate issued by Arya Samaj in respect of conversion of the appellant, before the Supreme Court, was sought to be produced in evidence. It was established in the reported judgment that the original was with her uncle and in spite of best efforts on her part, same was not traceable. A duplicate copy was issued for the second time, on the request made by appellant and that it was a true copy of the original. While considering the issue, the Supreme Court has observed in para 30 of the judgment, thus:
"It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasized that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party."
12. In the instant matter, it is observed that plaintiff has not made out a case for placing on record secondary evidence in the form of photostat copy of consent deed. The trial Court had fallen in error in exhibiting the document, in the absence of observance of prerequisites for production of secondary evidence and without ensuring that contents of the document are proved in accordance with Evidence Act.
13. The order dated 27.02.2012, passed by the trial Court below Exhibit-118 in R.C.S. No.415/2010 is, therefore, quashed and set aside and application tendered by defendants at Exhibit-118 shall be deemed to have been allowed. It would, however, be open for the plaintiff to comply with the requirement of law and prove the aforesaid document.
14. Rule is accordingly made absolute. There shall be no order as to costs.