The necessity to prove the existence and execution of the original document before admitting secondary evidence under Section 65 of the Indian Evidence Act, 1872.

JUDGMENT

1. This writ petition is filed against the order dated 19.02.2020 passed by the learned Civil Judge (South), Kota, whereby, the application filed by the petitioner-plaintiff under Section 65 of the Indian Evidence Act, 1872 (for brevity, "the Act of 1872"), has been dismissed.

2. Assailing the order, learned counsel for the petitioner contended that the learned trial Court did not appreciate that the respondent did not file on record the original documents in spite of direction of the learned trial Court vide order dated 12.05.2017 on his application filed under Order 11 Rules 12 and 14 CPC and hence, he was left with no option to seek permission of the Court to lead secondary evidence with regard to the document in question. He, therefore, prayed that the impugned order be quashed and his application filed under Section 65 of the Act of 1872 be allowed.

3. Heard learned counsel for the petitioner and perused the record.

4. The documents, photo copies of which are sought to be produced by way of secondary evidence are the allotment letter, the office order, the advertisement, letter and other documents. Undisputedly, the allotment order dated 24.07.1982 was issued to the petitioner and must be in its power and possession. There is not whisper of averment in the application filed under Section 65 of the Act of 1872 (Annexure-5) to show the present status of the original allotment letter i.e., as to whether it has been lost/ damaged/destroyed. Similarly, the application does not contain any averment as to existence of originals of other documents. The application also does not reveal as to how the petitioner came into possession of the photo copies of these documents. It is trite law that before the party can be permitted to lead secondary evidence with regard to any document, the requirement laid down under Section 65 of the Act of 1872 has to be satisfied including existence of the original of the document in question.

5. The Hon'ble Apex Court of India in case of J. Yashoda Vs. K. Shobha Rani, (2007) 5 SCC, 730 has held as under:-

"8. The rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section. In Ashok Dulichand v. Madahavlal Dube and Anr. [1975(4) SCC 664], it was inter alia held as follows:

"After hearing the learned counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference. According to clause (a) of Section 65 of Indian Evidence Act, Secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved or of any person out of reach of, or not subject to, the process of the Court of any person legally bound to produce it, and when, after the notice mentioned in Section 66 such person does not produce it. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence