IMPORTANT POINT
Conditions laid down in section 65 of Evidence Act must be fulfilled before secondary evidence would be admitted.

JUDGMENT

Dr. ARIJIT PASAYAT, J.—

1.Leave granted.

2.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.

2.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.

4.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.

5.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.

6.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 :

“63Secondary 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.”

8.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.

9.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 sec