IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Writ Petition No. 25912 of 2009
Decided On: 28.06.2010
Appellants: B.N. Sampath Kumar S/o Y.E. Natarajan “Nataraja Cold Stores”
Respondent: Rahimunissa Begum D/o Mohammed Jaffar Sab
Hon’ble Judges/Coram: Ashok B. Hinchigeri, J.
Law of Evidence – Admissibility of secondary evidence of document – Section 66, Evidence Act, 1872 – In suit proceedings for specific performance, Petitioner produced xerox copy of affidavit stating that it was by way of an agreement of sale executed by one Mr. X in favour of Petitioner – Trial Court refused permission to mark said xerox copy as an exhibit – Hence present petition – Whether Trial Court erred in rejecting secondary evidence of such document as being inadmissible in evidence – Held, unless foundation for producing secondary evidence is laid, xerox copy is not admissible in evidence – No secondary evidence can be admitted unless notice under Section 66 to person possessing it is issued as issuance of such notice is mandatory – If no notice was given to witness to produce document in original and if no material to show that photostat copy was made from its original, order permitting party to produce said copy is not proper – No averment in plaint that original affidavit is in possession of Respondent – Suit was not filed when Mr. X was alive and there is no way executant could be confronted with xerox copy on its genuineness – It is also not in dispute that Petitioner has not issued any notice to legal representatives of X to produce original or to admit that said copy is true copy of original – Trial court refused permission rightly – Petition dismissed.
1. The petitioner has raised the challenge to the order, dated 6.7.2009 (Annexure-E) passed by the Court of the Civil Judge (Sr.Dn.) and Prl. J.M.F.C., K.G.F. in O.S. No. 191/2005.
2. The facte of the case in brief are that the petitioner filed the suit against the respondent seeking the relief of specific performance of the agreement, dated 19.6.1989. In the said suit proceedings, the petitioner produced the xerox copy of the affidavit stating that it is by way of an agreement of sale executed by one Abdul Kareem Sab in favour of the petitioner. On the Trial Court refusing the permission to the petitioner to mark the said xerox copy as an exhibit, this petition is filed.
3. Ms. Ujwala, the learned Counsel appearing for M/s. Kumar and Kumar for the petitioner submits that the original affidavit which itself is by way of sale agreement, was in the possession of the said Abdul Kareem Sab. The petitioner retained the xerox copy of the said affidavit. She submits that the Trial Court has fallen into an error by refusing to admit the document in evidence on the ground that its executant is not alive. She further submits that the petitioner has complied with the requirement of law by putting the respondent on notice in the form prescribed by Order 11 Rule 16 of C.P.C. Only on the failure of the respondent to produce the original affidavit, the petitioner requested the Trial Court to permit him to lead the secondary evidence. She submits that the secondary evidence can be marked subject to the objections of the opposite party. Therefore, she submits that there is no justification for turning down the petitioner’s request doubting the genuineness of the xerox copy. In support of her submissions, she relies on this Court’s decision in the case of Gafarsab @ Sati Gafar SAB v. Ameer Ahamed reported in MANU/KA/0530/2005 : ILR 2006 KAR 169. The relevant paragraphs of the said decision are extracted hereinbelow:
5. Chapter V of the Indian Evidence Act, 1872 (for short “the Act”) deals with documentary evidence Section 61 of the Act deals with proof of contents of documents. The contents of documents may be proved either by primary or secondary evidence. Primary evidence means the document itself produced for inspection of the Court whereas the secondary evidence means and includes certified copies of public documents, copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies, copies made from or compared with the original; counterparts of documents as against the parties who did not execute them and oral accounts of the contents of a documents given by some person who has himself seen it. It is clear as a rule documents must be proved by primary evidence. If the primary evidence is not available for the masons set out in Section 65 of the Act only then secondary evidence is admissible therefore, before secondary evidence is adduced, a proper foundation , is to be laid for not producing the primary evidence. Only after the nonproduction of the primary evidence is satisfactorily accounted for, the secondary evidence would be permitted to be adduced.
a) 6. A party to the proceedings is not expected to file any application requesting the court to permit him to lead the secondary evidence. All that is expected of him is to step into the witness box and lead evidence setting out the circumstances under which he is unable to produce the primary evidence. If the Court is satisfied from such evidence that a case is made out for production of secondary evidence, it can permit the party to adduce secondary evidence subject to Sections 63 and 65 of the Act. However, when such permission is granted to the party by the court to lead secondary evidence, it is open to the apposite party to object to the production of such secondary evidence, in which event the court has to mark the document subject to the objections and decide the objections at the time of final disposal of the suit on merits in the event the objection is upheld the said documents and the evidence adduced in respect of the said documents may be ignored while deciding the case on merits. If the objection is over-ruled, the said documents and the evidence given in respect of the said documents can be taken into consideration while disposing of the case on merits. But, on the ground that the party who proposes to adduce secondary evidence has not disclosed from where, which authority he got the documents and whether the said documents are coming from a proper custody, the document cannot be received to be received in evidence. It is totally irrelevant consideration at the time of admitting the documents in evidence. La that view of the matter, though the application filed by the defendant is totally misconceived, the masoning given by the learned trial Judge for not accepting the secondary evidence is also illegal. Hence, the aforesaid findings require to be quashed, reserving the liberty to the petitioner-defendant to lay a proper foundation by satisfactorily explaining the reasons for not producing the primary evidence and thereafter he is at liberty to produce the secondary evidence which the Court may receive subject to the objections of the opposite party and decide the admissibility of the documents at the time of final disposal of the suit on merits….
4. Nextly, the learned Counsel relies on the Apex Court’s decision in the case of Nawab Singh v. Inderjit Kaur reported in MANU/SC/0329/1999 : AIR 1999 SC 1668. The relevant paragraph of the said decision is extracted hereinbelow:
3. Having heard the teamed counsel for the parties, we are of the opinion that the trial Court was not justified in rejecting the prayer seeking leave of the Court for production of secondary evidence. The prayer has been rejected mainly on the ground that the copy of the rent note sought to be produced by the appellant was of doubtful veracity. The trial Court was not justified in firming that opinion without affording the appellant an opportunity of adducing secondary evidence. The appellant has alleged the original rent note to be in possession of the respondent. The case was covered by Clause (a) of Section 65 of the Indian Evidence Act, 1872.
5. Ms. Ujwala brings to my notice that in respect of issue No. 1, the burden is cast on the petitioner. Unless the petitioner is permitted to produce the secondary evidence in respect of the affidavit in question, the petitioner would not be able to establish his case for the relief of specific performance of the agreement.
6. Per contra, Sri Trimurthy, the learned Counsel appearing for Sri K.S. Desai for the respondent submits that no notice whatsoever is given to the legal representatives of Abdul Kareem Sab or to the respondent under Section 66 of the Indian Evidence Act, 1872. He contends that giving of secondary evidence is permissible only if the pre-condition of issuing the notice under Section 66 of the said Act is complied with. The learned Counsel contends that the issuance of notice as contemplated by Order 11 Rule 16 of C.P.C, does not amount to giving notice as required under Section 66 of the Indian Evidence Act He submits that the notice under the said provisions of C.P.C. is for the purpose of producing the original document which is in the custody of the opposite party. In the instant case, as the defendant has denied the very execution of the affidavit, the question of complying with the notice issued under Order 11 Rule 16 of C.P.C. would not arise at all. He further brings to my notice that nowhere in the plaint, the petitioner has stated that the original affidavit is in the possession of the defendant.
7. Sri Trimurthy has relied on the Hon’ble Supreme Court’s decision in the case of Sital Das v. Sant Ram and Ors. reported in MANU/SC/0156/1954 : AIR 1954 SC 606, whereon it is held that the foundation must be first laid for the reception of the secondary evidence. On the same lines is the judgment of the Apex Court in the case of the Roman Catholic Mission v. the State of Madras and Anr. reported in MANU/SC/0253/1966 : AIR 1966 SC 1457, relied upon by the petitioner. It is held therein that the copies of the originals are not admissible in evidence, if no foundation is laid for the establishment of the right to give secondary evidence.
8. Nextly, Sri Trimurthy brings to my notice this Court’s decision in the case of B. Balachandra Rai v. Indian Telephone Industries Limited, By Its Chairman and Managing Director and Anr. reported in MANU/KA/0290/2003 : ILR 2003 KAR 2911. In the sail case, this Court has taken the considered view that mere production of photocopies do not amount to proof of the same unless the copy given in evidence is shown either to have been made from original or to have been compared with the original.
9. Further, Sri Trimurthy seeks to draw support from the Division Bench judgment of this Court in the case of K.P. Krishnakumar v. Smt. Radhalakshmi AMMA reported in ILR 2004 KAR 4838. The Division Bench has held that there must be sufficient proof of search for the original to render the secondary evidence admissible; it must be established that the party has exhausted all resources and means in search of the document. He has also relied on the Hon’ble Supreme Court’s decision in the case of Ram Suresh Singh v. Prabhat Singh Alias Chhotu Singh and Anr. reported in MANU/SC/0750/2009 : (2009) 6 SCC 681, to contend that the photocopy in the absence of the original is not admissible in evidence.
10. The question that falls for my consideration is whether the Trial Court has erred in rejecting the secondary evidence of such document as being inadmissible in evidence?
11. My perusal of the plaint discloses that there is no averment that the original affidavit is in the possession of the respondent. The last portion of paragraph S of the plaint reads as follows;
5. …The xeroxed copy of the said document is produced herewith as the said Kareem Sab detained the original of it for the purpose of the family partition.
12. Further, nowhere it is stated that the xerox copy is taken from its original or that it is compared with the original after taking its xerox copy. The decision of the Rajasthan High Court in the case of Rajasthan Golden Transport Co. v. LRs. of Amrtt Lal reported in MANU/RH/0221/1998 : AIR 1998 Rajasthan 153, is of immense assistance. It has held that if no notice was given to the witness to produce the document in original and if there is no material to show that the photostat copy was made from its original, the order permitting the party to produce the said copy is not proper.
13. It is also noteworthy that Abdul Kareem Sab was alive for about 12 years after the stated execution of the affidavit. The suit is not filed when he was alive. There is no way the executant can be confronted with the xerox copy on its genuineness. It is also not in dispute that the petitioner has not issued any notice to the legal representatives of Abdul Kareem Sab to produce the original or to admit that the copy in question is the true copy of the original. In this regard, the Apex Court in the case of Smt. J. Yashoda v. Smt. K. Shobha Rani reported in MANU/SC/7314/2007 : AIR 2007 SC 1721, has taken the considered view that when there is no possibility of the document being compared with the original, the xerox copy cannot be accepted as secondary evidence.
14. As held by the Apex Court in the case of Bitot Das (supra), unless the foundation for producing the secondary evidence is laid, the xerox copy is not admissible in evidence. A plain reading of the plaint does not show that the petitioner has exhausted all the resources and means in search of the affidavit. This can be an additional justificatory reason for the Trial Court’s refusal to take the secondary evidence. In this regard, it is useful to refer to the relevant paragraph of the Division Bench judgment in the case of K.P. Krishnakumar (supra), which is as follows:
16. Section 65 of the Evidence Act deals merely with the foundation that has to be laid for reception of secondary evidence. One of the circumstances vender which Section 65 allows the secondary evidence to be given of the existence, condition or contents of a document is when the original has been destroyed or lost. But, to admit the secondary evidence, however, it is not sufficient to show merely that the original document is lost. The secondary evidence itself must be of the nature described in Section 63. A true copy of a document will not be admissible under Section 63 unless it is shown that it has been made from or compared with the original. Further, there must be a sufficient proof of the search pr the original to tender the secondary evidence admissible & must be established that the party has exhausted all resources and means in search of the document which was available to him. Since this aspect falls within the domain vested in the trial Court, an appellate Court would not ordinarily interfere with the exercise of such discretion. However, it would certainty interfere if it finds that the trial Court has accepted the loss of the document as a fact without taking into consideration the prerequisite conditions that are required by the Evidence Act. At this Juncture, it needs to be noticed and highlighted that it is not the case of the defendant that Ex. D4 is made out of the original and consequently Ex.D-4 is not admissible under Section 63 of the Evidence Act.
15. When the respondent has denied the very execution of the affidavit in question and the petitioner has not issued notice to the legal representatives of the deceased Abdul Kareem Sab or any other party in whose possession the original document, if any, may be lying, the petitioner can not be permitted to produce the xerox copy in question as the secondary evidence. The Bombay High Court has held in the case of Sau. Parvatabai B. Raimande (deceased by L.Rs.) and Ors. v. Smt. Anjanabai G. Hiware and Anr. reported in AIR 2009 Bom 1264, thus:
(A) Evidence Act(1 of 1872), Rs. 65, 66 – Secondary evidence – Production – Procedure – Notice to produce to party in whose possession original document is – Necessary.
16. It is also worthwhile to refer to the decision of the Orissa High Court in the case of Purna Chandra Patnaik v. Kalidas Sen and Ors. reported in MANU/OR/0025/1973 : AIR 1973 Orissa 65, wherein it is held that, if the original is not in possession of the plaintiff, no secondary evidence can be admitted unless notice under Section 66 to the person possessing it is issued; the issuance of the notice under Section 66 of the said Act is mandatory. Similarly, the Division Bench of Calcutta High Court in the case of Nityananda Roy v. Rashbehari Roy reported in MANU/WB/0167/1953 : AIR 1953 Calcutta 456, has this to say:
5. …The procedure there prescribed is that the patty desiring to make use of secondary evidence must, in the first instance, serve a notice upon the party in whose possession the original may be, requiring him to produce the original and it is only when such notice is not complied with that the right to give secondary evidence arises There are certain exceptions to the rule laid down in Section 66, but it is perfectly clear that none of them applies to the present case. It is equally clear from the records that no notice of any kind was ever served on the petitioner. In those circumstances, it follows that the carbon copy of the signature, appearing on Ex. 1, never became admissible in law and in so far as the learned Magistrate’s conclusion is based upon Ex. 1, it is plainly erroneous.
17. As no material particulars as to what endeavours are made toy the petitioner to search the original are furnished, as the petitioner has not said in whose possession the original affidavit is lying, as no notice under Section 66 of the Indian Evidence Act, 1872 is issued, as the legal representatives of the deceased Abdul Kareem Sab are also not put on notice, as there is no averment in the plaint that the xerox copy is taken from the original or is compared with the original and as there is no possibility of the xerox copy being compared with the original, the Trial Court’s order dismissing the I.A. is absolutely upholdable and it is accordingly upheld. Considering the legal and factual matrix of this case, a xerox copy of the affidavit in question cannot be permitted to be marked in evidence at all. No foundation whatsoever is laid for the establishment of the right to give secondary evidence.
18. For all the aforesaid reasons, this petition is dismissed. No order as to costs.