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Karnataka High Court
Gafarsab alias Sati Gafar Sab - Appellant
Versus
Ameer Ahmad - Respondent
Decided On : 09-28-05
W.P. : 44063 of 2004
Indian Evidence Act, 1872 -Section 3 - Secondary evidence -When permissible. See, Section 61.
Civil Procedure Code, 1908 -Section 151 -Secondary evidence -Secondary evidence -Application for production of -Need not be made -Party should step into witness box and set out circumstances under which he is unable to produce primary evidence. [N. Kumar, J]: A party to the proceedings is not expected to file any application requesting the Court to permit him to lead the secondary evidence. All that is expected of him is to step into the witness box and lead evidence setting out the circumstances under which he is unable to produce the primary evidence. If the Court is satisfied from such evidence that a case is made out for production of secondary evidence, it can permit the party to adduce secondary evidence subject to Sections 63 and 65 of the Act.
Practice & Procedure -Secondary evidence -Secondary evidence -Application for production of -Need not be made -Party should step into witness box and set out circumstances under which he is unable to produce primary evidence.
Indian Evidence Act, 1872 -Contents of documents -Section 61 -Contents of documents -How to prove -May be proved by primary evidence or secondary evidence.
Indian Evidence Act, 1872 -Primary and secondary evidence -Section 61 -Primary and secondary evidence -What are -Stated. [N. Kumar, J]: Primary evidence means the document itself produced for inspection of the Court whereas the secondary evidence means and includes certified copies of public documents, copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies, copies made from or compared with the original; counter parts of documents as against the parties who did not execute them and oral accounts of the contents of a documents given by some person who has himself seen it.
Indian Evidence Act, 1872 -Secondary evidence -Section 61 -Secondary evidence -When permissible. [N. Kumar, J]: As a rule documents must be proved by primary evidence. If the primary evidence is not available for the reasons set out in Section 65 of the Act only then secondary evidence is admissible. Therefore, before secondary evidence is adduced, a proper foundation is to be laid for not producing the primary evidence. Only after the non-production of the primary evidence is satisfactorily accounted for, the secondary evidence would be permitted to be adduced.
Indian Evidence Act, 1872 -Secondary evidence -Section 63 -Secondary evidence -Rejection of application on ground that, documents were not obtained from proper custody -Justifiability. [N. Kumar, J]: When permission is granted to the party by the Court to lead secondary evidence, it is open to the opposite party to object to the production of such secondary evidence, in which event the Court has to mark the document subject to the objections and decide the objections at the time of final disposal of the suit on merits. In the event the objection is upheld the said documents and the evidence adduced in respect of the said documents may be ignored while deciding the case on merits. If the objection is overruled, the said documents and the evidence given in respect of the said documents can be taken into consideration while disposing of the case on merits. But, on the ground that the party who proposes to adduce secondary evidence has not disclosed from where, which authority he got the documents and whether the said documents are coming from a proper custody, the document cannot be refused to be received in evidence. It is totally irrelevant consideration at the time of admitting the documents in evidence. In that view of the matter, though the application filed by the defendant is totally misconceived, the reasoning given by the learned trial Judge for not accepting the secondary evidence is also illegal. Hence, the aforesaid findings require to be quashed, reserving the liberty to the petitioner-defendant to lay a proper foundation by satisfactorily explaining the reason for not producing the primary evidence and thereafter he is at liberty to produce the secondary evidence which the Court may receive subject to the objections of the opposite party and decide the admissibility of the documents at the time of final disposal of the suit on merits.
Indian Evidence Act, 1872 -Secondary evidence -Section 65 -Secondary Evidence -When permissible. See, Section 61.
Indian Evidence Act, 1872 -Secondary evidence -Section 65 -Secondary evidence -Rejection of application on ground that, documents were not obtained from proper custody -Justifiability. See, Section 63.
( 2 ) THE plaintiff has filed a suit for declaration of title and for possession. The defendant is contesting the said claim and he has set up a title by himself to the schedule property on the basis of a grant certificate issued. The defendant filed I. A. XIII and sought permission of the Court to lead secondary evidence in respect of the documents mentioned therein by producing xerox copies of the same. The said application was opposed by the plaintiff. The learned trial judge has rejected the said application on the ground that the defendant has not disclosed as to when and from whom he got the xerox copies of those documents. The xerox copies of the documents are not obtained from the proper custody. The Court has to consider the question whether the documents are coming from the proper custody or not. As the defendant has not disclosed the aforesaid facts he is not entitled to produce the same as secondary evidence. Aggrieved by the said order dated 27-9-2004 the petitioner has preferred this petition.
( 3 ) LEARNED counsel for the petitioner assailing the impugned order contends the defendant made an application to the concerned authorities to summon the aforesaid documents. The authorities who were examined by the plaintiff have deposed that they arc not in possession of the said documents. However, as the defendant had obtained xerox copies of these documents, he sought permission of the Court to produce the same as secondary evidence as It is permissible under Ss. 65 and 66 of the Indian Evidence act. The Court below was not justified in rejecting the said request.
( 4 ) PER contra, the learned counsel for the respondent contended, when the authorities who have given evidence in the proceedings have categorically stated that there are no documents, the question of the defendant producing the xerox copies of those documents would not arise. More over he has not explained how he came in possession of these documents, when and from where. Under those circumstances, the trial court was fully justified in rejecting the said application.
( 5 ) CHAPTER V of the Indian Evidence Act, 1872 (for short "the Act") deals with documentary evidence. Section 61 of the Act deals with proof of contents of documents. The contents of documents may be proved either by primary or secondary evidence. Primary evidence means the document Itself produced for Inspection of the Court whereas the secondary evidence means and includes certified copies of public documents, copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies, copies made from or compared with the original; counter parts of documents as against the parties who did not execute them and oral accounts of the contents of a document given by some person who has himself seen it. It is clear as a rule, documents must be proved by primary evidence. If the primary evidence is not available for the reasons set out in S. 65 of the act only then secondary evidence is admissible. Therefore, before secondary evidence is adduced, a proper foundation is to be laid for not producing the primary evidence. Only after the non-production of the primary evidence is satisfactorily accounted for, the secondary evidence would be permitted to be adduced.
( 6 ) A party to the proceedings is not expected to file any application requesting the court to permit him to lead the secondary evidence. All that is expected of him is to step into the witness-box and lead evidence setting out the circumstances under which he is unable to produce the primary evidence
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