The deliberate withholding of original documents allows for the use of certified copies as secondary evidence under Section 66 of the Indian Evidence Act and Section 57 of the Registration Act.

The second defendant in the suit is the revision petitioner. The Plaintiff/1st respondent herein has filed the suit O.S. No. 125 of 1991 before the Principal District Munsif Court, Namakkal for declaration that he is entitled to use the passage and injunction restraining the defendants from interfering with his right. The Plaintiff/1st respondent herein has sought permission of the Court below to mark certified copies of two sale deeds dated 30-10-1974 and 20-08-1973 which were executed in favour of the first defendant/second respondent herein. The same was objected by the petitioner herein, but the trial court allowed the 1st respondent herein to mark those documents as secondary evidence, hence this revision.

2. Mr. Dhanyakumar, learned counsel appearing for the petitioner submitted that Section 66 of the Indian Evidence Act shall not be applicable unless the party proposing to prove secondary evidence has previously given to the party in whose possession or power the document is, such notice to produce it as is prescribed by law, but no such notice was given by the petitioner herein to produce it; that the trial court failed to note that issuance of summons to mother of the 1st defendant/2nd respondent herein or attestors of document has nothing to do with the production of original document; that the court below failed to note that the first defendant colludes with the plaintiff and remains exparte in the suit and prayed for setting aside the order of the court below.

3. Now, we look into Section 66 of the Indian Evidence Act, which runs as follows:-

"66. Rules as to notice to produce – Secondary evidence of the contents of the documents referred to in Section 65, clause (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is or to his attorney or pleader, such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstance of the case;

Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:-

i) when the document to be proved is itself a notice;

ii) when, from the nature of the case, the adverse party must know that he will be required to produce it;

iii) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;

iv) when the adverse party or his agent has the original in Court

v) when the adverse party or his agent has admitted the loss of the document;

vi) when the person in possession of the document is out of reach of, or not subject to, the process of the Court."

4. The only purpose of a notice under Section 65 and 66 of the Indian Evidence Act is to give the party an opportunity of producing the original document. Secondary evidence is admissible when the party offering evidence of its contents cannot, for any reason, not arising from his own default or neglect, produce original document in reasonable time and under Section 66, the Court has absolute power to dispense with the notice when it deems it fit. Once it is established that the original deeds are being deliberately withheld by the party against whom they are sought to be used, secondary evidence in respect of those title deeds can be tendered and if the secondary evidence happens to be certified copies of registered document, then the contents thereof can be read in evidence by virtue of sub-section 5 of Section 57 of Registration Act.

5. In this case, admittedly, the petitioner herein was given notice to produce the document No.2 but he has stated that it was not in his possession, hence certified copy of the same was allowed to be marked. In respect of document No.1 is concerned, which is a sale deed under which the property was purchased in favour of the minor 1st d