Landmark
Judgment on secondary Evidence
Secondary evidence, as a general
rule is admissible only in the absence of primary evidence. If the original
itself is found to be inadmissible through failure of the party, who files it
to prove it to be valid, the same party is not entitled to introduce secondary
evidence of its contents.Essentially, secondary evidence is an evidence which
may be given in the absence of that better evidence which law requires to be
given first, when a proper explanation of its absence is given. The definition
in Section 63 is exhaustive as the Section declares that secondary evidence
"means and includes" and then follow the five kinds of secondary
evidence.The rule which is the most universal, namely that the best evidence
the nature of the case will admit shall be produced, decides this objection
that rule only means that, so long as the higher or superior evidence is within
your possession or may be reached by you, you shall give no inferior proof in
relation to it. Section 65 deals with the proof of the contents of the documents
tendered in evidence. In order to enable a party to produce secondary evidence
it is necessary for the party to prove existence and execution of the original
document. Under Section 64, documents are to be provided by primary evidence.
Section 65, however permits secondary evidence to be given of the existence,
condition or contents of documents under the circumstances mentioned. The
conditions laid down in the said Section must be fulfilled before secondary
evidence can be admitted. Secondary evidence of the contents of a document
cannot be admitted without non-production of the original being first accounted
for in such a manner as to bring it within one or other of the cases Evidence
Act, 1872--Sections 63 and 65 (a)--Secondary evidence--Admissible only in
absence of primary evidence--If original itself found to be inadmissible
through failure of party--Same party not entitled to introduce secondary
evidence of its contents--In order to enable party to produce secondary
evidence--It is necessary for party to prove existence and execution of
original document--Conditions laid down in Section 65 must be fulfilled before
secondary evidence can be admitted.
Supreme Court of India
Smt. J. Yashoda vs Smt. K. Shobha Rani on 19 April, 2007
Citation; AIR2007SC1721,
2007(3)ALLMR(SC)823,
Bench: Dr. Arijit Pasayat,
Lokeshwar Singh Panta
Challenge in this appeal is to the judgment rendered by a learned Single Judge
of the Andhra Pradesh High Court allowing the civil revision petition filed.
Challenge in the said petition was to the order dated 3.11.2003 in OS No. 30 of
1999 on the file of learned First Additional Chief Judge, City Civil Court,
Secunderabad wherein document Exh. B-1 to B-8 were marked and taken as
secondary evidence. The challenge in the civil revision was that the aforesaid
documents could not have been marked and taken as secondary evidence since they
are photo copies.Learned Single Judge held that the documents which were sought
to be received and marked as secondary evidence are photo copies. It was noted
that it may be a fact that the original of the documents are not available with
the parties but at the same time the requirement of Section 63 of the Indian
Evidence Act, 1872 (in short the 'Act') is that a document can be received as an
evidence under the head of secondary evidence only when the copies made from or
compared with the original are certified copies or such other documents as
enumerated in the above section. The High Court found the photo copies can not
be received as secondary evidence in terms of Section 63 of the Act and they
ought not to have been received as secondary evidence. Since the documents in
question were admittedly photo copies, there was no possibility of the
documents being compared with the originals. Accordingly the Civil Revision was
allowed.Learned counsel for the appellant submitted that a rigid view has been
taken by the High Court. The High Court could not have ignored the mandatory
requirements as contemplated under Section 63 of the Act more specifically when
the Section provides that when the copies made from the evidence can be adduced
as secondary evidence. It was further submitted that the mandatory
prescriptions in Section 65(a) of the Act have been lost sight of.Learned
counsel for the respondent on the other hand supported the judgment of the High
Court stating that the requirement of Section 65(a) have not been fulfilled in
this case and the High Court rightly held that the documents could not have
been accepted as secondary evidence.In order to consider rival submissions it
is necessary to take note of Sections 63 and 65 (a). Sections 63 and 65(a)
reads as follows:"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
ensure 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.65. Cases in which
secondary evidence relating to documents may be given Secondary evidence may be
given of the existence, condition, or contents of a document in the following
cases:-(a) When the original is shown or appears to be in the possession or
power- of the person against whom the document is sought to be proved or of any
person out of reach of, or not subject to, the process of the Court, or of any
person legally bound to produce it, and when, after the notice mentioned in
Section 66, such person does not produce it."Secondary evidence, as a
general rule is admissible only in the absence of primary evidence. If the
original itself is found to be inadmissible through failure of the party, who
files it to prove it to be valid, the same party is not entitled to introduce
secondary evidence of its contents.Essentially, secondary evidence is an
evidence which may be given in the absence of that better evidence which law
requires to be given first, when a proper explanation of its absence is given.
The definition in Section 63 is exhaustive as the Section declares that
secondary evidence "means and includes" and then follow the five
kinds of secondary evidence.The rule which is the most universal, namely that
the best evidence the nature of the case will admit shall be produced, decides
this objection that rule only means that, so long as the higher or superior
evidence is within your possession or may be reached by you, you shall give no
inferior proof in relation to it. Section 65 deals with the proof of the
contents of the documents tendered in evidence. In order to enable a party to
produce secondary evidence it is necessary for the party to prove existence and
execution of the original document. Under Section 64, documents are to be
provided by primary evidence. Section 65, however permits secondary evidence to
be given of the existence, condition or contents of documents under the circumstances
mentioned. The conditions laid down in the said Section must be fulfilled
before secondary evidence can be admitted. Secondary evidence of the contents
of a document cannot be admitted without non-production of the original being
first accounted for in such a manner as to bring it within one or other of the
cases provided for in the Section. In Ashok Dulichand v. Madahavlal Dube and Another [1975(4) SCC 664], it was inter
alia held as follows:"After hearing the learned counsel for the parties,
we are of the opinion that the order of the High Court in this respect calls
for no interference. According to clause (a) of Section 65 of Indian Evidence
Act, Secondary evidence may be given of the existence, condition or contents of
a document when the original is shown or appears to be in possession or power
of the person against whom the document is sought to be proved or of any person
out of reach of, or not subject to, the process of the Court of any person
legally bound to produce it, and when, after the notice mentioned in Section 66
such person does not produce it. Clauses (b) to (g) of Section 65 specify some
other contingencies wherein secondary evidence relating to a document may be
given, but we are not concerned with
those clauses as it is the common
case of the parties that the present case is not covered by those clauses. In
order to bring his case within the purview of clause (a) of Section 65, the
appellant filed applications on July 4, 1973, before respondent No. 1 was
examined as a witness, praying that the said respondent be ordered to produce
the original manuscript of which, according to the appellant, he had filed
Photostat copy. Prayer was also made by the appellant that in case respondent
no. 1 denied that the said manuscript had been written by him, the photostat
copy might be got examined from a handwriting expert. The appellant also filed
affidavit in support of his applications. It was however, nowhere stated in the
affidavit that the original document of which the Photostat copy had been filed
by the appellant was in the possession of Respondent No. 1. There was also no
other material on the record to indicate the original document was in the
possession of respondent no.1. The appellant further failed to explain as to
what were the circumstances under which the Photostat copy was prepared and who
was in possession of the original document at the time its photograph was
taken. Respondent No. 1 in his affidavit denied being in possession appeared to
the High Court to be not above suspicion. In view of all the circumstances, the
High Court to be not above suspicion. In view of all the circumstances, the
High Court came to the conclusion that no foundation had been laid by the appellant
for leading secondary evidence in the shape of the Photostat copy. We find no
infirmity in the above order of the High Court as might justify interference by
this Court."The admitted facts in the present case are that the original
was with one P. Srinibas Rao. Only when conditions of Section prescribed in
Section 65 are satisfied, documents can be admitted as secondary evidence. In
the instant case clause (a) of Section 65 has not been satisfied. Therefore,
the High Court's order does not suffer from any infirmity to warrant
interference. The appeal fails and is dismissed but in the circumstances
without any order as to costs.
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