Secondary evidence of a document is admissible under Section 65(a) of the Evidence Act, 1872, when the party seeking to introduce it has shown that the original document is not in their possession, that they have taken steps to procure its production from the person who is in possession of it, and that the person in possession has failed to produce the document after receiving notice under Section 66 of the Act.

ORDER :- The first defendant is the petitioner. The suit is for declaration of the plaintiff's title to the suit property and for recovery of possession under a sale deed dated 9-7-1965 executed by Sivaprakasa and an exchange deed Ex. A. 2. The first defendant resisted the suit on the ground that he is in possession of the western half of the suit property, orginally under a usufructury mortgage dated 23-6-1962 and later under an agreement of sale by Sivaprakasa in his favour dated 22-8-1964. The first defendant contended that the agreement of sale was reduced to writing on stamp papers supplied by the vendor Sivaprakasa, that one Ratnasabapathi Piliai wrote the said agreement that one Ramalingam had attested it, that he purchased stamp papers in his name for completing the sale transaction, that he gave them to the vendor Sivaprakasa to get the sale deed written up on the stamp papers, that Sivaprakasa, instead of completing the sale transaction, sold the suit property to the plaintiff, and that, therefore, the plaintiff being a subsequent vendor has no title to the suit property.

2. The trial of the suit commenced and the first defendant examined himself as D. W. 1. In the course of his evidence, the first defendant referred to the agreement of sale, and, when he let in oral evidence regarding the contents of the said agreement the plaintiff raised an objection to the same. The learned District Munsif upheld the objection and passed an order dated 14-10-1969 refusing to allow the first defendant to let in oral evidence regarding the contents of the document. The present revision petition is filed by the first defendant against the said order of the learned District Munsif.

3. Under Section 61 of the Evidence Act, the contents of documents may be proved either by primary or by secondary evidence. What is primary and secondary evidence, is explained in Section 62 and Section 63 respectively. Section 64 provides for proof of the contents of documents only by primary evidence, by production of the documents themselves, except in cases falling under Sections 65 and 66. The result is that, when the primary evidence is not available, proof by secondary evidence is permissible. Under what circumstances secondary evidence is permissible, is contained in the seven cases enumerated in Section 65. We are here concerned with S. 65(a) which runs :-

"65. Secondary evidence may be given of the existence, condition or contents of a document in the following cases :-

(a) when the original is shown or appears to be in the 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, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it."

It is thus seen that secondary evidence of a document is permissible only when the party desirous of having such evidence admitted has proved that the document is not in his possession, that he had done what could be done to procure the production of the original document, that the original document is in possession or power of the person against whom the document is sought to be proved, and that, though notice under Section 66 was issued to the person who is in possession of document to produce the document, he has failed to do so. In order to avail the machinery under Sections 65 and 66 it is, therefore, necessary to establish that a document was executed, and that the said document is not with him but is in the possession or power of the person against whom the document is sought to be proved. In this connection reference may be made to three decisions which are material. In Biswanath v. Dhapu Debi, AIR 1960 Cal 494 where, when the original document was not in possession of the plaintiff, when no finding was recorded that the defendant was in possession of the original document and when the plaintiff tendered certified copy of th