A xerox copy of a certified copy of a document is inadmissible in evidence as it is not a primary evidence and does not fall under any of the illustrations of secondary evidence provided in Section 63 of the Indian Evidence Act, 1872.

1. THIS application under section 115 of the Code of Civil Procedure is directed against order No. 83 passed on October 4, 1991 by the learned Munsif, 35th Court, Alipore in Misc. Case No. 48of 1990 arising out of Title Execution Case no. 50 of 1986.

2. THE petitioner was the judgment-debtor tenant in an eviction suit instituted by the successor-in-interest of the opposite parties landlords. The predecessor in interest of the opposite parties filed a Title Suit being no. 327 of 1976 in the 5th Court of Munsif at Alipore for the eviction of the petitioner. The Title Suit was decreed upto the stage of the Hon"ble Supreme court and the petitioner lost all throughout.

3. THERE after the opposite parties initiated a Title Execution case no. 50 of 1986 for execution of the decree obtained in the said title Suit no. 327 of 1976.

4. IN the said Title Execution case, the petitioner filed a petition under section 47 of she Code of civil Procedure which was registered as Misc. Case no. 48 of 1990 and in connection with the said Misc. case, the petitioner filed an application for being allowed to produce a xerox copy of the certified copy of a document The said application of the petitioner was rejected by the impugned on for against which the present revisional application has been made before this court. It is not necessary to go into all the (facts raised and contended by the parties in the revision application. It is true that the learned Munsif in the impugned order has made certain remarks which may not be tenable in law but the main question centers round two paints namely, whether the question of title can begone into in execution proceedings and whether a xerox copy of a certified copy of an original document can be admitted into evidence.

5. SO far as the first point is concerned it is not settled law that the question of title, in order to prove that the decree is a nullity can be gone into even in execution proceedings and it is not necessary to discuss the case laws on this point as the section itself namely, section 47 read with Order 21 Rule 97 and specially Order 21 Rule 101 clinch the issue.

6. IT is the second point which needs some consideration. It was sought to be argued, on a citation of a few cases at the bar, that such evidence may be admissible in evidence. Mr. Shyamaprasanna roy choudhury, learned advocate appearing for the petitioner cited a number of decisions including the decision reported in air 1944 PC 11, AIR 1980 Cal. 90, AIR 1980 Cal. 219 and AIR 1968 SC 938. Of these decisions reported in air 1980 Cal. 90 and AIR 1981 Cal. 219 deal with the raising of question of title in the execution proceeding regarding which it has already been cited hereinbefore that the law is now settled that such question can be raised in execution proceedings.

7. THE other two cases deal with the admissibility of evidence of copies of documents.

8. THE learned court below was wrong in holding that before considering the admissibility of evidence the court's duty is first to consider the relevancy of the evidence concerned. I am afraid that the reverse is the proposition of law namely, the admissibility of a document has nothing to do with the relevancy of the document. If a document is not admissible in law its relevancy is immaterial. On the contrary if a document is admissible only then the question of relevancy of such evidence or the probative value of such evidence will be taken into consideration. Be that as it may, in this revisional application we are to consider as to whether a xerox copy of the certified copy of a document can be admitted in evidence.

9. THE Hon'ble Supreme Court in the case of Lakshmipat Choraria and Ors. vs. State of Maharashtra, reported in AIR 1968 SC 938, on a consideration of a large number of cases, held that in the circumstances of that particular case a photograph, though not a primary evidence, is admissible in evidence. The said case is not of much help to the petitioner as the circu