Admissibility of photocopies as secondary evidence under the Evidence Act, 1872 is contingent upon meeting the requirements of Section 63(3) and the need for foundational evidence to authenticate the alleged copy as a true copy of the original.

JUDGMENT

1. This writ petition under Article 227 of the Constitution of India has been filed against the order dated 04.08.2021 passed by the learned Additional District Judge No.1, Baran, District Baran whereby, an application filed by the petitioner-plaintiff under Section 65 of the Evidence Act, 1872 (for brevity, 'the Act of 1872') has been dismissed.

2. The facts in brief are that in a suit filed for specific performance of the agreement and permanent injunction, the petitioner filed an application under Section 65 of the Act of 1872 for tendering a photocopy of the photocopy of the agreement to sell dated 22.07.2011 in evidence. The aforesaid application has been dismissed by the learned trial Court vide its order dated 04.08.2021, impugned herein.

3. Assailing the order, learned counsel for the petitioner submitted that photocopy of a photocopy of the original document was admissible in evidence. He, in support of his submission, relies upon a judgment of Hon'ble Apex Court of India in case of M. Chandra v. M. Thangamuthu and Anr.: (2010) 9 SCC 712. He, therefore, prays that the order impugned dated 04.08.2021 be quashed and set aside and he may be permitted to lead secondary evidence.

4. Heard. Considered.

5. Learned trial Court has dismissed the application filed by the petitioner assigning cogent reasons. A categorical finding has been recorded by the learned trial Court that document in question appears to be a copy of the photocopy without any endorsement that the photocopy was prepared from the original agreement or that it was compared with the original copy. Relying the provisions of Section 63 of the Act of 1872, it was held that such copy is inadmissible in evidence as secondary evidence.

6. Section 63(3) of the Act of 1872 provides that copies made from or compared with the original are admissible as secondary evidence. Indisputably, the document in question does not satisfy the aforesaid requirement.

7. The judgment in case of M. Chandra (supra) is of no help to the petitioner. Therein also, it was specifically observed in para 47 as under:

"...............................The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original...................."

8. As already held, the document in question is not a true copy of the original. In its order dated 04.08.2021, the learned trial Court has also held that it could not be established by the plaintiff that original of the agreement dated 22.07.2011 was in existence.

9. The Hon'ble Apex Court has, in case of Harjas Rai Makhija (Dead) Through Legal Representatives v. Pushparani Jain and Anr.: (2017) 2 SCC 797 wherein the Hon'ble High Court of Madhya Pradesh declined to admit a photocopy of another photocopy as secondary evidence, held that such evidence cannot be considered as secondary evidence.

10. In the facts and circumstances of the case and in the backdrop of statutory provisions contained in the Act of 1872, this Court is satisfied that the order impugned dated 04.08.2021 has been passed by the learned trial Court in exercise of judicious discretion based on cogent material on record which does not warrant any interference of this Court under its supervisory jurisdiction vide Article 227 of the Constitution of India.

11. Resultantly, this writ petition is dismissed being devoid of merit.