The petitioner must establish that the documents were lost or destroyed to rely on Section 65(c) of the Indian Evidence Act for marking xerox copies as secondary evidence.

The petitioner seeks to challenge the order of the Court below dated 1-7-2002 in I.A.No.19125 of 2001 in O.S.No.12015 of 1996, in and by which the petitioner's application for marking xerox copies of various documents, such as, deed of hypothecation, memorandum, by which the title deeds were deposited by the first respondent, deed of guarantee etc., was rejected.

2. According to the petitioner, when there was shifting of the office premises, the aforesaid documents were misplaced, that the efforts to trace out the documents ended in vain and therefore, they should be permitted to file xerox copies. The Court below refused to accede to the request of the petitioner by rejecting the application filed by the petitioner.

3. On a reading of Section 65(c) of the Indian Evidence Act, I find that only in the event of the petitioner establishing to the satisfaction of the trial Court that the documents were either lost or destroyed, the petitioner could be permitted to mark the copies of those documents by way of secondary evidence. Reliance was placed upon by the learned counsel for the petitioner in 1999 (1) CTC 6 (Balaji Seafoods Exports (India) Ltd. v. Mac Industries Ltd.) and AIR 2000 SUPREME COURT 2629 (Marwari Kumhar and others v. Bhagwanpuri Guru Ganeshpuri and another) in support of her contention. Even in the above referred to judgments also, it has been made clear that in the event of the party satisfying the stipulations contained in Section 65(c) of the Act, they would be entitled for marking of copies of the documents by way of secondary evidence. Unfortunately, in the case on hand, a reading of the affidavit filed in support of the petition and the relevant averment contained in para 3, which is to the following effect,

"I state that the defendant have admitted the execution of all the aforesaid documents in his written statement. I state that there was a shit of office premises. During the course of shifting the said documents were misplaced. All the efforts to trace out the documents were ended in vain. Therefore this petitioner was not able to produce the said documents in the original form before this Hon'ble Court during the course of trial."

would disclose that the petitioner has come forward with the said averment in the most casual manner while contending that the primary documents, based on which the suit claim wholly rests, such as hypothecation deed, deed of guarantee as well as memorandum, by which the first respondent deposited the title deeds, were all misplaced.

4. It is not even the contention of the petitioner that the documents were lost once and for all or destroyed by the petitioner. In fact, there is no detail as to who was entrusted with the custody of those documents; at what point of time, shifting of the premises took place and from which place to which place. There is also no detail as to at whose instance any search was made and as to what further action was taken against the personnel concerned, who were entrusted with the custody of those valuable documents. Thus, the petitioner's affidavit, in support of its application, was lacking in material particulars.

5. In fact, no steps were taken by the petitioner to establish to the satisfaction of the Court below that the documents were really lost or destroyed in the course of the official business transaction of the petitioner. In such circumstances, the petitioner had absolutely no right to invoke Section 65(c) of the Evidence Act in order to seek for marking of xerox copies of the documents to support its suit claim. The Court below has rightly held that even according to the petitioner, the documents were only misplaced and not lost once and for all and that nothing was placed before the Court to show that earnest efforts were taken for tracing out the documents and that in spite of such efforts, the petitioner could not trace out the same.

6. Therefore, I do not find any illegality or irregularity in the order of the Court below in re