IMPORTANT POINT
Secondary evidence—Circumstance for production of secondary evidence is essentially a matter of evidence and brought through inference from such evidence.

K.Kannan, J. —The revision petition is against an order rejecting a plea for reception of secondary evidence brought at the trial by the defendant on a plea that the original Will is not traceable and he is therefore tendering a registered copy of the Will as secondary evidence. This application for reception of secondary evidence was disallowed by an objection taken by the plaintiff that affidavit of the witnesses had been placed in court as a substitute for the chief examination of witnesses in the manner contemplated under the amended provisions of Order 18 CPC and in those affidavits it is stated that they had seen the original in court. An objection therefore was when the witnesses have stated that they had seen the original, the defendant was deliberately burking the document and trying to secure admission of secondary evidence. I called upon the plaintiff’s counsel to show how a reception of secondary evidence could be thrown out even without proof that circumstances exist for such a reception. The counsel appearing for the respondent supports the order passed by the court below by reference to a full Bench ruling of this court in Gulati v. Shiv Charan and others, 1980 HLR 273. The reference to Full Bench by a Division Bench had been made in a situation when yet another Division Bench view was stated to be not in accord with the opinion of Privy Council rendered earlier. The full bench was holding that secondary evidence cannot be permitted unless the case was pleaded that the original was lost and the loss was accounted to the satisfaction of the court. I have no difficulty in accepting an argument and indeed I will be bound by the judgment of the Full Bench that the secondary evidence cannot be relied on by a court unless the loss of original is accounted for. How the same should be done is the issue for consideration in this case now.

2. In my view, filing an application for reception of secondary evidence is not contemplated as a necessary procedure, even as per the views expressed by the full bench. In deed, there is not even a requirement in law to file an application for reception of secondary evidence. It may be practice in some courts and may be adopted by some counsel. It is neither mandated under CPC nor is it a requirement under the Evidence Act. All that the Evidence Act requires for production of secondary evidence is that one or other circumstance set out under Section 65 of the Evidence Act must be satisfied. Under Section 65, secondary evidence can be produced where the original has been destroyed or lost or the party offering evidence on his contest cannot, due to any other reason not arising from his own default, produce it in reasonable time. It can be noticed that a loss of document is not the only consideration. It can be even a situation where the person offering evidence cannot produce it in reasonable time. Inability to produce could include a circumstance as pleaded that the document is not traceable.

3. If a person tenders a registration copy document and states that it is not traceable, the court is bound to receive the document and subject the statement of the person tendering the document to be tested in the cross-examination. The circumstance for production of secondary evidence is essentially a matter of evidence and brought through inference from such evidence. It cannot be prejudged on an assumption that the person producing the secondary evidence ought to be taken as stating an untruth or he is deliberately burking the same. Even a reference that in the proof affidavit filed it is stated that the original has been filed in court ought to be taken as a mistake of fact, since the original is indeed not in court. A statement in the proof affidavit that the original is filed in Court can be explained to be wrong and secondary evidence can be tendered on a later statement that the original is not traceable. The previous statement by the same witness testified by affirmation