Secondary evidence can only be admitted when original documents are unavailable, and prior notice to produce such documents must comply with Section 66 of the Evidence Act.

JUDGMENT :

1. Heard Sri S.V.S.S. Siva Ram, learned Counsel for the petitioner.

2. The petitioner is the defendant in COS No.5 of 2024 on the file of the Court of Special Judge for Trial and Disposal of Commercial Disputes, Visakhapatnam (in short 'Special Court').

3. The respondent/plaintiff filed OS No.222 of 2019 on the file of the Court of the learned II Additional District Judge, Visakhapatnam, for recovery of a sum of Rs.1,38,21,843/- together with interest @ 25% per annum from the petitioner/defendant.

4. Later on, on the objection and filing of the written statement, the learned Additional District Judge returned the plaint, for filing before the Commercial Court, Visakhapatnam, the nature of dispute being the commercial dispute. The parties were directed to appear before the Special Judge. The O.S. was renumbered as COS No.5 of 2024. In the C.O.S., the petitioner/defendant filed IA No.326 of 2024 under Sections 63 , 65 and 114 of the Indian EVIDENCE ACT , 1872 (in short 'Act') seeking to permit the Memorandum of Agreement, (MOA) dated 16.09.2019, as secondary evidence and mark the same as exhibit on behalf of DW1. The respondent/plaintiff filed counter, and on consideration, the Special Judge rejected IA No.326 of 2024, vide order, dated 04.10.2024, on the ground that there was non-compliance with the provisions of Section 66 of the Indian EVIDENCE ACT , 1872 (in short 'Act') and Order XI Rule 5(2) of the Code of Civil Procedure, 1908 (in short 'CPC'), as applicable to the Commercial Courts.

5. Challenging the order, dated 04.10.2024 the petitioner has filed the civil revision petition under Article 227 of the Constitution of India.

6. Learned Counsel for the petitioner does not dispute that there was non-compliance with Section 66 of the EVIDENCE ACT , but he submits that the plaintiff, as PW1, in his deposition, denied the execution of the Memorandum of Agreement (MOA), dated 16.09.2019. So, the requirement of sending notice to the plaintiff under Section 66 of the Act to produce MOA, dated 15.09.2016 was an empty formality. He submits that the Court had the discretion to dispense with the requirement of notice. However, he admits that the petitioner's case is not covered under Clauses (1) to (6) of the first Proviso to Section 66 of the Act.

7. I have considered the aforesaid submissions and perused the material on record.

8. The relevant provisions deserve to be reproduced first.

9. Section 65 of the EVIDENCE ACT reads as under :

"65. Cases in which secondary evidence relating to document 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;

(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, produc