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"
Vs.
Respondent: Rahimunissa Begum D/o
Mohammed Jaffar Sab
Hon'ble Judges/Coram:
Ashok B. Hinchigeri, J.
Citation: 2010(4)KCCR2757
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 inMANU/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.