Admissibility of secondary evidence should be provisionally recognized at the trial stage, with objections resolved at final judgment to expedite proceedings.

JUDGMENT

1. This civil revision petition is filed questioning the order dated 26.09.2022 in IA No.379 of 2022 in OS No.362 of 2021 passed by the I Additional Junior Civil Judge, Machilipatnam, Krishna District.

2. Petitioner is the plaintiff. The suit OS No.372 of 2021 was filed for recovery of an amount of Rs.4,82,660/-. The basis for the claim was that the plaintiff was doing business in Shop Bearing No.11/468-469 under the name and style of Sri Radha Krishna General Stores and was selling Paints of different companies. The respondent had approached the petitioner/plaintiff and they had entered into a business transfer agreement on 28.03.2018 and accordingly the business of the petitioner was transferred to respondent/defendant for a period of 5 years i.e., from 01.04.2018 to 31.03.2023 under a lease agreement dated 28.03.2018. Though the respondent/defendant had taken the property in terms of the agreement dated 28.03.2018, the respondent failed to make balance payment in terms of their agreement. As on the date of suit, Rs.2,81,598/- is payable by the respondent. Since the amount is not being paid, the suit was filed.

3. In the course of the suit, the petitioner filed IA No.379 of 2022 requesting the Court to consider the photostat copy of the business transfer agreement dated 28.03.2018 as secondary evidence and receive the same in evidence since the original document was not traceable. The petitioner contended that the document is a crucial suit document and can be marked as secondary evidence when there is sufficient explanation for the same. This application was opposed by the respondent/defendant. The Trial Court had rejected the application by relying on the judgments of the Apex Court in Smt. H. Yashoda v. Smt. K. Shoba Rani , 2007 (2) RCR (Civ.) 840; Dhanpat v. Sheo Ram (deceased) through LRs. and others , (2020) 16 SCC 209 and Jagmail Singh v. Karamjit Sing and others , 2021 SAR (Civ.) 86. Hence, the present revision petition is filed.

4. Heard Sri Akula Vamsi Krishna, learned Counsel for the petitioner and Sri K. Rama Prasad, learned Counsel for the respondent.

5. The Section 65 of the EVIDENCE ACT contemplates scenarios where secondary evidence can be received in evidence. The scenario provided under Section 65 (c) of the EVIDENCE ACT is applicable to the facts of this case i.e., when the document is lost. The defendant in his written statement is disputing the very execution of the disputed document and from that view point, the receiving and marking of the disputed document would not be of any prejudice to the defence of the defendant.

6. The factum of execution of disputed document and the claim having lost the original document could be established in the course of trial rather than at this interlocutory stage. A similar view was expressed by the Hon'ble Supreme Court in Bipin Shantilal v. State of Gujarat , = (2001) 3 SCC 1. The Paragraphs 12 to 16 are relevant and are extracted below :

"12. As pointed out earlier, on different occasions the Trial Judge has chosen to decide questions of admissibility of documents or other items of evidence, as and when objections thereto were raised and then detailed orders were passed either upholding or overruling such objections. The worse part is that after passing the orders the Trial Court waited for days and weeks for the concerned parties to go before the Higher Courts for the purpose of challenging such interlocutory orders.

13. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the Court does not proceed further without passing order on such objection. But the