A litigant should not be penalized for the negligence or inaction of their counsel regarding the custody of original documents; if a sufficient foundation is laid, secondary evidence (such as photocopies) should be permitted under Section 65 of the Indian Evidence Act.

ORDER

This Civil Revision Petition is filed by the petitioner/defendant No.7 aggrieved by the decretal order dated 05.03.2025 passed in I.A.No.116 of 2025 in O.S.No.1227 of 2022 on the file of the Senior Civil Judge, Ranga Reddy District at Kukatpally.

Heard Mr. Katepalli Sai Sashi Yadav, learned counsel appearing for the petitioner/defendant No.7, and Mr. Ramaraju Shyam Sunder, learned counsel appearing for the respondents/plaintiffs. Perused the material available on record.

The brief facts of the case are as follows:

(i) The respondents/plaintiffs filed O.S.No.1227 of 2022 seeking specific performance of contract. The petitioner/defendant No.7 states that it had handed over all original documents to its previous counsel, Sri K.R. Koteswara Rao, for filing in the suit and was under the bona fide impression that the same were filed before the trial Court. However, upon verification by the present counsel, it was found that the original documents were not available on record. The petitioner contacted the previous counsel and, upon receiving no response, issued a letter dated 25.01.2025. Despite acknowledgment, no reply was received.

(ii) The petitioner had obtained an acknowledgment from the previous counsel at the time of handing over the original documents, which has been filed to establish bona fides. Accordingly, I.A.No.116 of 2025 was filed under Section 65 of the Indian Evidence Act seeking permission to lead secondary evidence in respect of the documents mentioned therein. The trial Court, vide order dated 05.03.2025, dismissed the said application. Aggrieved thereby, the present Civil Revision Petition is filed.

The Trial Court, vide order dated 05.03.2025, dismissed I.A.No.116 of 2025 observing as follows:

“It is appearing that the defendant No.7 without pressurizing his earlier counsel for return of the documents he has filed the present petition. It is the duty of the counsel to return all the documents to his party whenever the vakalat was withdrawn. Mere the earlier counsel for the defendant No.7 not returned the original documents is not a ground to lead secondary evidence in respect of the above said documents. Even no foundation laid by the defendant No.7 about the existence and conditions of the above said documents. In such circumstances the defendant No.7 is not entitled to lead secondary evidence in respect of the above said documents. Accordingly the point for consideration is answered.

In the result, the petition is dismissed.”

Learned counsel for the petitioner/defendant No.7 submits that the trial Court failed to appreciate that the original documents were entrusted to the previous counsel and the petitioner cannot be made to suffer due to the negligence or inaction of the said counsel. It is further submitted that the petitioner is in possession of xerox copies of the documents, which have been produced through the learned counsel, and therefore the petitioner is entitled to lead secondary evidence in accordance with law.

On the other hand, learned counsel appearing for the respondents/plaintiffs did not oppose allowing of the Civil Revision Petition.

Point for Consideration:

The point that arises for consideration, is whether the trial Court was justified in dismissing the application filed under Section 65 of the Indian Evidence Act seeking permission to lead secondary evidence.

It is well settled that a litigant should not suffer for the lapse or negligence of the counsel, particularly when custody of the documents is satisfactorily explained and foundational facts regarding their loss or non-availability are placed before the Court.

In the present case, the petitioner has asserted that the original documents were entrusted to the previous counsel and has placed on record an acknowledgment to that effect. The explanation regarding non-return of the documents appears reasonable. It is also submitted that xerox copies of the said d