IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VIVEK JAIN

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ON THE 16 OF DECEMBER, 2025 MISC. PETITION No. 6529 of 2025 SMT.SAEEDA BI AND OTHERS Versus RABIYA BI AND OTHERS Appearance:

Shri Sunil Kumar Mishra - Advocate for the Petitioner.

Shri Akhilesh Kumar Jain - Advocate for the Respondents No.1 to 7.

ORDER The present Petition has been filed challenging the Order 06.03.2025 passed by the Trial Court thereby rejecting the application under Section 65 of the Evidence Act filed by the Petitioner/Plaintiff.

2. It is contended by learned counsel for the Petitioner that the original of the document is with the contesting parties i.e, defendants No.1 to 5 and since these defendants in response to application under Order 11 Rule 12 of the CPC have denied to be in possession of the original, therefore, Plaintiff had no option but to file application under Section 65 of Evidence Act for leading secondary evidence from the photo copy of original.

3. Per contra, learned counsel for the respondents/defendants had vehemently opposed the Petition on the assertion that the present Petition has been filed in November, 2025 though the impugned Order was passed in March, 2025 and the said Order has been challenged after 8 months only when the suit is now fixed for final arguments.

4. Upon considering the rival submissions and on perusal of the record, it is seen that the Petitioner seeks to lead secondary evidence of the document stated to be a consent letter executed between the members of the family, and shown to be written on Stamp paper of Rs.100/-.

5. The application under Section 65 only mentioned that the original is with the defendants No.1 to 5 who seem to have destroyed the original of the document and the Plaintiff is producing photocopy of the document. In the said application, there is not a single averment that whether the said photocopy has been made from the original of the document and under what circumstances and from which document, the said photocopy has been taken and in what manner, so as to infer that it is photocopy of the original.

6. There seems to be some force in the statement of learned counsel for the defendants No.1 to 5 that this document stated to be written in January, 2009 has been attested by a Gazetted Officer of the State Government somewhere in the year 2010 which may indicate that the Gazetted Officer attested the photocopy from the original and the Petitioners being in possession of the attested photocopy might have been in possession of the original and therefore, much responsibility lay on the Petitioners to State with certainty and clarity, that how the photocopy has come to be in possession of the Plaintiffs and in what manner, it is photocopy of the original.

7. As per Section 63 of the Indian Evidence Act, secondary evidence is defined, which is as under:

"63. Secondary evidence. –– Secondary evidence means and includes –– (1) certified copies given under the provisions hereinafter contained;

(2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;

(3) copies made from or compared with the original;

(4) counterparts of documents as against the parties who did not execute them;

(5) oral accounts of the contents of a document given by some person who has himself seen it.

Illustrations-

(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.

(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.

(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with th