The admissibility of photocopies for cross-examination and the requirement for original documents as primary evidence under Section 62 of the Indian Evidence Act.

JUDGMENT

Tushar Rao Gedela, J. (Oral)

[The proceeding has been conducted through Hybrid mode]

CM APPL. 17463-64/2023

1. Exemption is allowed, subject to all just exceptions.

2. The applications stand disposed of.

CM APPL. 17465/2023

3. This is an application seeking exemption from filing the Trial Court record.

4. At this stage, there is no requirement to summon the Trial Court record.

5. The application is disposed of accordingly.

CM(M) 576/2023 & CM APPL. 17462/2023 (Stay)

6. The petitioner challenges the order dated 21.02.2023 passed in RC/ARC No. 5210/2016 titled Geeta Issar vs. S. Gurbachan Singh, whereby the petitioners have been directed to cross-examine the witness of the respondent before the Local Commissioner on the basis of the photocopies of the documents, the originals whereof have been permitted to be filed subsequently.

7. Mr. Nitin Mittal, learned counsel appearing for the petitioner submits that the procedure as stipulated vide the impugned order is a unique procedure inasmuch as even before the original documents have been produced before the learned Trial Court or the Local Commissioner, the Court is expecting the petitioner to conduct cross-examination on those photocopies.

8. Learned counsel further submits that the learned Trial Court has also given the permission to the respondent to file those original documents of the photocopies at a subsequent stage. Learned counsel submits that this procedure is contrary to Section 62 of the Indian Evidence Act, 1872 (hereinafter as "Evidence Act") and the cross-examination cannot take place on the basis of photocopies.

9. Learned counsel submits that the impugned order is a gross violation of the procedural norms and ought to be interfered with by this Court under Article 227 of the Constitution of India.

10. Per Contra, Mr. Rishi Sood, learned counsel appearing for the respondent submits that the learned Trial Court had considered the reasons of medical issue of the husband of the petitioner and also to ensure that there is no delay or protraction of trial, that the learned Trial Court has passed such direction.

11. Learned counsel further submits that the cross-examination, if any, on the basis of the photocopies is obviously subject to the production of the original documents by the respondent and therefore, no prejudice would be caused to the petitioner by cross-examining the witness of the respondent.

12. Learned counsel submits that it is well settled law that the issues would be decided only on the basis of original documents and not otherwise and as such learned counsel submits that the impugned order is sustainable in law.

13. This Court has heard the arguments and has perused the impugned order placed on record.

14. It would be apposite at the outset to extract the provisions of Section 62 of the Evidence Act hereunder:

"62. Primary evidence.-Primary evidence means the document itself produced for the inspection of the Court.

Explanation 1.-Where a document is executed in several parts, each part is primary evidence of the document; Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.

Explanation 2.-Where a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original. Illustration A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original."

From the aforesaid as also from the catena of judgments in respect of what a primary document would constitute, it goes without saying that only original documents con