The petitioner, defendant in O.S.No.6660/2014 on

the file of the XLI Additional City Civil and Sessions

Judge at Bengaluru City (CCH-42) (for short, ‘Trial

Court’) is before this Court aggrieved by part of order

dated 10.08.2023 on I.A.No.2/2023 filed under Order

VIII Rule 1-A(3) of CPC, by which it does not permit the

petitioner to mark letters dated 29.07.2010 and

14.08.2010 and the petitioner is seeking permission to

mark the above said two letters.

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2.

Heard

the

learned

counsel

Smt.Nayana

Thara.B.G.,

for

petitioner/defendant-Bank

and

Sri.Rajadithya

Sadasivan

for

respondent/plaintiff.

Perused the writ petition papers.

3.

Learned counsel for the petitioner/defendant-

Bank would submit that suit of the respondent/plaintiff is

one for recovery of money in a sum of Rs.18,89,723/-

along with 18% interest. Learned counsel for the

petitioner would submit that petitioner/defendant-Bank

filed I.A.No.2/2023 under Order VIII Rule 1-A(3) of CPC

seeking permission to produce and mark 15 documents

as mentioned in the application. It is submitted that

under

impugned

order,

Trial

Court

allowed

the

petitioner/defendant-Bank to produce documents at

Sl.Nos.1 to 13 and refused permission to produce and

mark documents at Sl.Nos.14 and 15 of I.A.No.2/2023

i.e., letters dated 29.07.2010 and 14.08.2010 said to

have been written by respondent/plaintiff to the

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petitioner/defendant-Bank.

Learned

counsel

would

submit that Trial Court committed an error in disallowing

production and marking of those two letters. Learned

counsel would submit that those two letters are

absolutely

necessary

to

prove

the

contention

of

petitioner/defendant-Bank. Attention of this Court is

invited to paragraph 7 of the plaint, wherein the plaintiff

himself has stated that he has written those two letters

to the Bank. Further, learned counsel would submit that

copy of those two letters are produced before the IV

ACMM Court in PCR No.15450/2014 and on obtaining

certified copies from the said proceedings, those two

letters are produced before the Trial Court. Learned

counsel would submit that letters dated 29.07.2010 and

14.08.2010 are not denied by respondent/plaintiff. The

copies produced were copy made from the document

produced before the IV ACMM Court in the above stated

PCR. Learned counsel placing reliance on Section 63(2)

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of Indian Evidence Act, 1872 (for short, ‘Evidence Act’)

would submit that secondary evidence includes copies

made from original by mechanical process which in

themselves insure the accuracy of the copy, and copies

compared with such copies. Learned counsel would

submit

that

the

copies

produced

along

with

I.A.No.2/2023

are

certified

copies

of

documents

produced before the IV ACMM Court. Learned counsel

would also submit that Xerox copy of documents/record

requires to be permitted to produce as secondary

evidence in terms of Section 65 of Evidence Act. Learned

counsel would submit that since the originals are not

found, the petitioner/defendant-Bank produced certified

copies obtained from IV ACMM Court, where the said

documents produced in PCR No.15450/2014. Referring

to Clause (3) of Section 65 of Evidence Act, learned

counsel would submit that Trial Court committed an

error in not permitting to produce certified copies of the

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documents as secondary evidence. Placing reliance on

the decision of Calcutta High Court in the case of

LAKSMI KANTO ROY VS. NISHI KANTO ROY AND

TWO OTHERS¹, learned counsel would submit that

when the documents are not denied and when certified

copies of the same are produced, the Court ought to

have permitted production and marking of those two

documents. Learned counsel would further submit that

when there is no dispute about said letters and its

existence, the Trial Court erred in holding that

foundation has not been laid in letting in secondary

evidence. Learned counsel with regard to observation of

the Trial Court that the application is barred as principles

of res judicata would apply, it is submitted that

principles