A.No.5794 of 2023 in C.S.(Comm. Div.) No.115 of 2021 ABDUL QUDDHOSE.J., M/s.PVR INOX Limited ... Applicant Vs.

M/s.Sri Thenandal Films ... Respondent *****

This application has been filed to grant leave to mark the photocopy of the documents by way of secondary evidence.

2. A list has been annexed in Annexure - A to this application. The applicant is the plaintiff in the suit. Along with the plaint the applicant / plaintiff had filed documents which are xerox copies. The learned counsel for the applicant / plaintiff would now submit that the originals of the documents annexed along with the plaint are not traceable and under those circumstances, the applicant / plaintiff has filed this application, seeking leave of this Court to mark the photocopy of the documents which have been annexed in Annexure -A to this application.

3. According to the applicant / plaintiff, earlier M/s.Sathyam Cinemas had a contractual relationship with the respondent / defendant. Thereafter, M/s.Sathyam Cinemas got amalgamated with PVR Ltd., pursuant to amalgamation order passed by the National Company Law Tribunal (NCLT). Once again PVR Ltd. got amalgamated with the present applicant by virtue of another amalgamation order passed by the NCLT. According to the applicant / plaintiff, in view of the mergers, the original documents which were annexed along with the plaint got misplaced and are not traceable. Under those circumstances, this present application has been filed, in view of the objections raised by the respondent / defendant during the course of trial for marking the documents which are annexed in the Annexure - A to this application.

4. A counter affidavit has also been filed by the respondent /

defendant raising objections for allowing this application. According to them, the claim is hopelessly barred by limitation. Further, photocopy of the documents mentioned in Annexure - A to this application cannot be marked as exhibits in view of the statutory bar as prescribed under Sections 63 and

65 of the Indian Evidence Act.

5. The learned counsel for the applicant / plaintiff drew the attention of this Court to the Judgment of the Honourable Supreme Court in the case of Dhanpat VS. Sheo Ram (Deceased) through Legal Representatives and Others reported in 2020 (16) SCC 209 and would submit that in the said decision, the Honourable Supreme Court had followed the earlier decision of the Honourable Supreme Court in Bipin Shantilal Panchal Vs. State of Gujarat and Another reported in 2001 (3) SCC 1. After relying upon both the decisions, the learned counsel for the applicant / plaintiff would submit that proper procedure to be followed, while marking photocopies of the documents by way of secondary evidence, is to mark the said documents as exhibits leaving it open for the party raising objections with regard to the marking of those documents during the course of the arguments. In particular he referred to paragraph No.14 of the Judgment of the Honourable Supreme Court in Bipin Shantilal Panchal Vs. State of Gujarat and Another case referred to supra for the said proposition.

6. However, the learned counsel for the respondent / defendant would rely upon the following authorities in support of his contention that photocopies of the documents cannot be marked as exhibits by way of secondary evidence. He would also rely upon Sections 63 and 65 of the Indian Evidence Act and would submit that it is not legally permissible to file photocopies of the documents by way of secondary evidence. In support of his contentions, he also relies upon the following authorities:

a) A judgment of the Honourable Supreme Court in the case of J.Yashoda Vs. K.Shobha Rani reported in 2007 (5) SCC 730. Relying upon the said judgment, he would submit that the secondary evidence, as a general rule is admissible only in the absence of primary evidence. He has pleaded that if the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid