JUDGMENT 1. A legal question relating to the maintainability of the suit for want of notice u/s. 10 of the Carriers Act, 1865, coupled with proof of documents has been raised in this case by the learned counsel for the parties. 2. It appears that a suit was filed by plaintiff/respondents for recovery of Rs. 87,624 alleging that plaintiff No. 2 was carrying on business in the name of M.P. Wires & Conductors Pvt. Ltd. and used to transport its goods outside Gwalior. Defendant No. 1 was the transporter and No.2 its partner and Manager. The goods mentioned in para 4 of the plaint were handed over to the defendant for transportation to Sagar. The goods destroyed on account of fire due to negligence and misconduct on the part of the defendants and their authorised agents. The plaintiffs got a report of1he Survey Inspector and it was reported that goods valuing Rs. 62,107.16 were damaged, besides Rs. 2,249/- was also paid as fee to the Surveor. The goods were insured with plaintiff No.1. The goods did not reach the destination. A claim was preferred. It was also alleged that notice was given by the plaintiff on 8.5.80 to the defendants demanding damages. Thereafter plaintiff No. 1 and 2 gave another notice dated 14.2.83 through their counsel to the defendants requesting them to pay the amount within 15 days else interest at the rate of 15% will also be payable and action will be taken. As the claim was not satisfied the suit was filed. It has been disputed by the defendants that the goods were entrusted for transportation. The fact that defendant No. 2 was partner and Manager of the Transport Corporation of defendant No. 1 has, however, been admitted. The defendants claimed that the plaintiffs had requested them for sending the truck for transportation of goods to Sagar but as he had no truck available they had arranged for a truck of New Bharat Transport Company, Naya Bazar, Lashkar, and the goods of the plaintiff were sent through it. The goods were not given to the defendants at all. The said truck was not under the control of the defendants. Along with the goods in question match-boxes were also loaded in the same truck. The entire truck was burnt but it was an accident and not on account of negligence or carelessness of any person. The goods were not given to the defendants at all. The said truck was not under the control of the defendants. Along with the goods in question match-boxes were also loaded in the same truck. The entire truck was burnt but it was an accident and not on account of negligence or carelessness of any person. The defendants were not liable for destructions of goods on account of accidental fire. The suit was liable to be dismissed. The defendants specifically alleged that plaintiff No. 2 did not give any notice dated 8.5.80 to them. They, however, admitted notice dated 14.2.83 was given and it was alleged that it was replied with correct facts. In para 19 a specific plea has been raised to the effect that no notice within six months from the date i.e. 17.4.80 was given and as such the suit was not maintainable. The learned trial Court decreed the suit. Hence this appeal. 3. As mentioned earlier the sole ground of attack of the learned counsel for the appellants is that no notice u/s. 10 of the Carriers Act was given on 8.5.80 as prayed and as such the suit is not maintainable. It cannot be said nor it has been disputed that a notice is necessary u/s. 10 of the Carriers Act. This section provides : "10. Notice of loss or injury to be given within six months-- No suit shall be instituted against a common carrier for the loss of, or injury to, goods entrusted to him for carriage, unless notice in writing of the loss or injury has been given to him before the institution of the suit and within six months of the time when the loss or injury first came to the know ledge of the plaintiff." Thus, it is the duty of the plaintiff to prove that a notice as required under this section was given. Unless it is proved the suit is not maintainable. The learned counsel for the plaintiff/respondents has not been able to show from the record that notice dated 8.5.80 was given because that notice has not been brought on record. A lengthy argument has been advanced by the learned counsel for the respondents to the effect that there is a mention of the notice dated 8.5.80 in the notice dated 14.2.83 and as such it should be taken that the notice was given. A lengthy argument has been advanced by the learned counsel for the respondents to the effect that there is a mention of the notice dated 8.5.80 in the notice dated 14.2.83 and as such it should be taken that the notice was given. The second contention is that there is statement of the plaintiff, K.L. Bhavesh, with respect to the notice which has not been cross-examined and as such it should be taken that giving of the notice has been proved and the notice has been proved. Learned counsel also argued that the notices documents Ex. P-5 and P-9 are relevant and they show that notice;'" were given. 4. Now it must be mentioned at the very outset that the best rule of evidence is that where documentary evidence is available it must be produced. When a fact is alleged by a party and specifically denied by the other, it is the duty of the party alleging the fact to prove it by adducing the best evidence available. Of course if a document was executed it must be filed, if original is lost or not available secondary evidence as provided under law may be filed. But in absence of the fact that the original is lost or not traceable inspite of the best efforts secondary evidence is not admissible I may repeat here that photocopies themselves are not admissible. It was, therefore, the duty of the plaintiff to have brought on record the notice dated 8.5.80 but it has neither been filed nor produced. Reference has been made, as said earlier, to the statement of PW 1 Bhavesh, who stated in para 2 that he had given notice to the defendant to pay the amount through his Counsel Shri R.S. Bhatnagar which is Ex. P-5. Again he further stated that the defendant sent a letter to the plaintiff No. 2 admitting handing over of the goods for transportation in his letter dated 26.5.80 i.e. Ex. P-9. Much emphasis has been laid on these two documents. I have an occasion to express my view about the proof of document which is required under the Evidence Act with respect to the documents filed by the parties. Sections 47 and 67 of the Evidence Act are relevant. P-9. Much emphasis has been laid on these two documents. I have an occasion to express my view about the proof of document which is required under the Evidence Act with respect to the documents filed by the parties. Sections 47 and 67 of the Evidence Act are relevant. Section 47 deals with opinion as to handwriting when relevant, and under this provision a person who is said to be acquainted with the handwriting of another person must be produced to prove the handwriting of the person by whom it is supposed to be written or signed. Section 67 provides for proof of signature and handwriting of person alleged to have signed or written document produced. Under this provision if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. Thus, unless a document is proved in the manner provided under this section it cannot be said to have been proved in accordance with law. Marking of the exhibit does not dispense with the proof. This view was also expressed by the Apex Court in AIR 1971 SC 1865 (Sait Tarajee Khimchand v. Yelamarti Satyam). Thus, it has to be found from the evidence i.e. Ex. P-5 and P-9 on which much reliance has been placed, have been proved as required under the law. I have already said above that witness Shri Bhavesh simply stated that notice given by his counsel Shri Bhatnagar was Ex. P-5. Similarly, with respect to Ex. P-9 he stated that photocopy of letter dated 26.5.80 is Ex. P-9. This can hardly be said to be proof of the document to the effect that these documents were in the handwriting of the person in whose handwriting or signature they purport to be. The learned counsel for the plaintiff/respondents vehemently argued that there is no cross-examination in this regard and as such it should be taken that the documents have been proved. The learned counsel for the plaintiff/respondents vehemently argued that there is no cross-examination in this regard and as such it should be taken that the documents have been proved. In support of his contention he placed reliance upon 1977 JLJ SN 61 (Laxmansingh and others v. State of M.P.) where this Court held that where a witness is not cross-examined his testimony has to be taken as it is unless there is something to render it as unworthy. Here it is not the question as to whether the statement of a witness should or should not be accepted. Here the question is of non-production of best evidence. The best evidence is the document itself. If a document is in existence and is not produced, even an uncross-examined statement of a witness with respect to a document which has not been proved in accordance with law cannot be said to be sufficient to hold that the document has been proved. It is the bounden duty of the party relying upon a document to prove the document as required by law. If the document has not been proved the mere fact that it has been marked as an exhibit by the learned trial Court does not dispense with proving of the document according to law. It appears that either the learned counsel conducting the case did not know the provisions of law relating to proof of documents or by any in advertance he could not prove the document. Similarly it was the duty of the learned trial Court as well to have seen as to whether the document has been proved in accordance with .law. The mere statement of a witness that such and such document is there does not prove the document. Consequently, the document should not have been exhibited unless it was proved as required by law. I am, therefore, of the view that both these documents have not been proved. The plaintiff has not even filed the notice dated 8.5.80. 5. The learned counsel for the respondent in order to show that a notice dated 8.5.80 was given placed reliance on photocopy of the notice dated 14.2.83, Ex. P-9, and argued that there is a mention in this notice that a notice dated 8.5.80 was given. He also argued that receipt of notice dated 14.2.83 was admitted in para 11 of the written statement. P-9, and argued that there is a mention in this notice that a notice dated 8.5.80 was given. He also argued that receipt of notice dated 14.2.83 was admitted in para 11 of the written statement. It is apparent from perusal of para 11 of the plaint as well as written statement that the plaintiff alleged that he sent two notices dated 8.5.80 and 14.2.83. The defendant specifically denied in para 11 of written statement to have received any notice dated 14.2.83, but merely receipt of the notice does not prove that contents of the notice were admitted. It was the duty of the plaintiff to have filed reply of the notice sent by the defendant and proved it in accordance with law. A photocopy of the notice dated dated 14.2.83 has been filed. Photocopy by itself is not admissible unless the document is proved and its contents cannot be relied upon. In this view of the matter it has not been proved at all from the record that the plaintiff had given any notice on 8.5.80. In view of provisions of section 10 no suit can be instituted unless a notice is given the suit was incompetent in absence of notice. The contention of the learned counsel for the defendant must, therefore, be accepted. I, therefore, up-hold it. The learned trial Court did not scrutinise the evidence regarding proof of the documents with respect to notice and as such it has committed an error. The suit cannot, therefore, be decreed as it is not maintainable. The appeal is, therefore, allowed on this question. The judgment and decree passed by the trial Court is set aside and the suit is dismissed. Parties are, however, left to bear their own costs throughout.