IMPORTANT POINT
Secondary evidence under Sections 65-B and 65-C of the Indian Evidence Act requires proof of loss or unavailability of original documents; mere marking of documents does not equate to their proof.

ORDER :

T.Madhavi Devi, J.

These two Civil Revision Petitions have been filed against the common and consolidated order passed in I.A.Nos.1498 and 1499 of 2023 in O.S.No.79 of 2018, dated 22.02.2024, on the file of Principal District Judge, Sangareddy District.

2. Brief facts leading to the filing of the present Civil Revision Petitions are that the petitioner herein is the defendant in the suit filed by the respondent plaintiff for recovery of a sum of Rs.5,70,82,068/-, which includes the principal amount of Rs.1,67,86,375/- and interest thereon @ 18% p.a., from the date of registration of claim i.e., 25.11.2004 till the date of filing of suit which amounted to Rs.4,02,95,693/-. The plaintiff has filed two I.As., one under Section 65-B of Indian Evidence Act and the other under Section 65-c of Indian Evidence Act r/w 151 Civil Procedure Code respectively praying the Court to admit the documents which are mentioned in the petition and the Chief affidavit and to permit to mark them as exhibits in O.S.No.79 of 2018. The petitioner/defendant has objected to the same stating that the plaintiff has not proved or stated that the subject documents have been lost forever and therefore, the secondary evidence cannot be admitted. However, the trial Court has allowed the petitions filed by the plaintiff and therefore, defendant has filed the present Civil Revision Petitions challenging the said orders.

3. It is submitted that in respect of the petition filed under Section 65-B of the Indian Evidence Act, the trial Court has permitted the plaintiff to mark certain documents on behalf of plaintiff under Section 65-B of Indian Evidence Act on the ground that the said documents are electronic printouts, computer outputs and the same were obtained from the computers maintained by the plaintiff company wherein the said information was stored, though the ingredients of Section 65-B of Indian Evidence Act are lacking in the said case. It is submitted that the trial Court failed to see that the documents which are sought to be marked are Xerox copies of the printouts obtained from the computer and the original documents were not produced even at the time of filing of suit. It is submitted that the trial Court has failed to see that the respondent company has not submitted the certificate under Section 65-B of Indian Evidence Act certifying that the printouts are obtained from the same computer which was used regularly to store the information during the relevant time by the person having lawful control over the use of such computer.

4. In respect of the petition filed under Section 65-c of Indian Evidence Act, learned counsel for the petitioner submitted that the trial Court permitted the plaintiff to mark the Xerox copies as exhibits even though the respondent did not explain as to how the original documents are lost and the reasons for marking the Xerox copies as exhibits by considering them as secondary evidence, though the ingredients of Section 65-c of Indian Evidence Act are lacking in the present case. It is submitted that the trial Court also failed to see that the contents of the affidavit filed in support of the petition merely stated that the documents could not be traced out as they were sixteen years old, but not that they were lost. Therefore, according to him, there existed no valid ground to allow the petition. It is submitted that the trial Court ought to have observed that Rule 113(7) of the Civil Rules of Practice does not permit marking of Xerox copies in the absence of originals unless the conditions mentioned in Section 65(c) are fulfilled.

5. Learned counsel for the petitioner, while reiterating the above submissions, also relied upon the following judgments:

1. Benga Behera and Another Vs. Braja Kishore Nanda and Others AIR 2007 SC 1975;

2. Sital Das Vs. Sant Ram and Others AIR 1954 SC 606;

3. B.Balachandra Rai Vs. Indian Telephone Industries Limited 2003 (5) KARLJ 79;

4. Rajasthan Golden Transport Company Vs. Lrs.Of Amritlal AIR 19