IMPORTANT POINT
Copy made from or compared with original secondary evidence of its contents, copy compared with original by copying machine secondary evidence, and secondary evidence of document can be allowed to be let in only when original shown to have lost or misplaced.

Arun Bhansali, J.—This writ petition is directed against the order dated 5.8.2013 passed by the trial court, whereby the application filed by the petitioner under Section 65 of the Evidence Act, 1872 (‘the Act’) has been rejected.

2. The petitioner-plaintiff filed a suit for recovery of Rs.15,800. It was, inter alia, claimed in the suit that a sum of Rs.15,000 was lent by the plaintiff to one Gopal Das on 27.9.2005 and for securing the payment, Gopal Das gave a Cheque of Rs.15,000 and the date of payment was 27.10.2005; Gopal Das died on 29.9.2005; the cheque was produced before the Bank on 5.11.2005 when the same was dishonoured on account of insufficient funds, which was returned by the Bank with memo; the defendants, who are representatives of the deceased Gopal Das were reminded several times for payment of the said amount, however, the same was not paid. Ultimately, the suit was filed seeking recovery of the said amount. Alongwith the suit, the plaintiff filed photocopy of the cheque.

3. A written statement was filed by the defendants-respondents denying the receipt of amount by Gopal Das and delivery of any cheque.

3A. During pendency of the suit an application was filed by the plaintiff under Section 65 of the Act. It was, inter alia, indicating that alongwith the suit photocopy of the cheque and memo sent by the Bank indicating the dishonour of the cheque was filed; the original cheque and memo was delivered to the counsel for producing before the court, which has been misplaced by the counsel and are lost; the photocopy of the cheque and bank memo are of the original cheque and original memo, which are like the original and, therefore, permission to lead secondary evidence qua the said documents be granted. Alongwith the application, affidavits of the plaintiff and that of the counsel were filed.

4. The defendants-respondents resisted the application. It was, inter alia, contended that the affidavit of the person to whom the cheque and the memo have been handed over has not been filed, the documents have not been compared and, therefore, the documents cannot be accepted as secondary evidence.

5. The trial court after hearing the parties found that the language of the affidavits of the plaintiff and the counsel were exactly the same and, therefore, their version cannot be taken into consideration; as the documents could not be produced on account of negligence of the plaintiff, secondary evidence cannot be produced. The court also found that under the provisions of Order VII, Rule 14 CPC, original documents are required to be filed and for any reason they can’t be produced, the documents alongwith application under the provisions of Order VII, Rule 14(3) CPC, after seeking the permission only could be produced and when even the original could be produced only with the permission, the photocopy, when the concerned person is already dead cannot be accepted as secondary evidence otherwise also for the lapse or neglect of the plaintiff. The document under Section 65 of the Act was not admissible as secondary evidence and, consequently, rejected the application.

6. It is submitted by learned counsel for the petitioner that the trial court committed error in dismissing the application filed by the petitioner. It was claimed that the documents were handed over to the counsel and the counsel lost the same and the petitioner cannot be punished on account of the same. It was submitted that the application was duly supported by affidavits of the plaintiff as well as counsel, however, the trial court committed mistake in rejecting the affidavits only on account of the form and has ignored the substance. It was submitted that under the provisions of Section 63 (3) and 65 (c) of the Act, the secondary evidence of the documents could be led and, therefore, the petition may be accepted.

7. Reliance was placed on Marwari Kumhar and Ors. v. Bhagwanpuri Guru Ganeshpuri and Anr., (2000) 6 SCC 735: [2000] 5 Supreme 486 Vehemently opposin