ORDER :

Petitioners being 1st & 3rd defendants in a partition suit in O.S.No.1209/2009 are knocking at the doors of the writ court for assailing the order dated 17.01.2020 vide Annexure-K whereby the learned XXXVIII Addl. City Civil Judge, Bengaluru having overruled petitioners objection has marked a xerox/photostat copy of Deed of Co-ownership dated 15.05.1996 as Exhibit-345, in the cross-examination of the witness concerned; the contesting respondents having entered appearance through their counsel resist the writ petition making submission in support of the impugned order.

2. Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant indulgence in the matter as under and for the following reasons:

(a) Admittedly, suit is one for partition; petitioners happen to be the contesting defendants therein; during the course of trial, the subject document which is a xerox/photostat copy of alleged Deed of Co-ownership has been marked in the cross examination of Defendant No.2 by confronting the same under Order VII Rule 14(4) of the Code; the only reason stated by the Court below for marking the same is that the witness in the box ie., DW-2 admits it; this is completely erroneous, to say the least; the application of Order VII Rule 14(4) is confined to cross-examination of plaintiffs’ witness, which is not the case here; although, in a partition suit, ordinarily, the rank of parties pales into insignificance, the norm enacted in the said provision applies in the absence of a Counterclaim by the said defendant who was being cross-examined.

(b) The subject document which appears to be a copy of the title deed, is marked apparently as a secondary evidence; this presupposes the existence of the primary evidence namely the original document; primary evidence is that which does not by its very nature suggests that better evidence may be available; secondary evidence is that by its very nature does suggest that better evidence may be available; the original of a documentary evidence constitutes primary evidence and a copy thereof is secondary evidence of its contents, needs no elaboration; the distinction is important in connection with documents, because their contents must, as a general rule be proved by production of the original, by virtue of the “Best Evidence Rule”, as articulated by Lord Hardvicke in OMYCHUND vs. BARKER (1745) I ATK. 21, AT P.49, as under:

“The judges and sages of the law have laid it down that there is but one general rule of evidence, the best that the nature of the case will allow…” OMYCHUND vs. BARKER (1745) I ATK. 21, AT P.49.

Thus where there was nothing better, recourse might be had to evidence which would otherwise be inadmissible; this well established rule of evidence has not animated the impugned order and thus there is an error apparent on its face.

(c) Section 64 of the Indian Evidence Act, 1872, which has enacted the Best Evidence Rule requires that the contents of a document must be proved by the production of the original document and that the secondary evidence of it is not normally admissible; Section 65 enacts the exception to this rule by laying down the circumstances in which secondary evidence may be given; the principle is that as long as the original exists and is available, it being the best evidence must be produced; however, if it cannot be produced on account of loss/destruction/detention by others, who despite notice decline to produce or for such other reasons, then secondary evidence becomes admissible; the reason d’etre of this rule is stated by PORTER.J., in THOMAS vs. T, 1 La 166, 168 (Am) as follows:

“The rule is only another form of expression for the idea that when you lose the higher proof, you may offer the next best in your power …. The rule does not mean that men’s rights are to be sacrificed and their property lost because they cannot guard against events beyond their control; it only means that, so long as the higher or