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Andhra High Court · body

2009 DIGILAW 80 (AP)

M. Aruna v. Trilok Kumar Sanghi

2009-02-17

P.S.NARAYANA

body2009
Judgment : While admitting the civil revision petition, on 03.12.2008 in C.R.P.M.P.No.7091 of 2008, interim stay had been granted. 2. Heard Dr. Y. Padmavathi, learned counsel representing revision petitioner and M/s. Manjiri S Ganu, learned counsel representing respondent. 3. This civil revision petition is filed by the unsuccessful petitioner- plaintiff as against an order made in I.A.No.75 of 2008 in O.S.No.480 of 2005 on the file of IX Additional Senior Civil Judge (FTC), City Civil Court, Hyderabad. 4. The said application was filed by the petitioner-plaintiff praying for permission to mark Xerox copy of statement said to be in the handwriting of the son of the respondent-defendant. The said application was opposed on certain grounds and the learned Judge after recording certain reasons ultimately dismissed the said application without costs. Aggrieved by the same, the present civil revision petition had been preferred. 5. Dr. Y. Padmavathi, learned counsel representing the petitioner would maintain that the learned Judge erred in exercise of the jurisdiction in illegally refusing to admit and mark the document on a wrong impression that the document was refused to be received as primary evidence and, therefore, it cannot be received as secondary evidence. The learned counsel also would maintain that the learned Judge had not understood the distinction between the primary evidence and the secondary evidence and during the course of chief- examination refusing to mark Xerox copy as primary evidence would not operate as res judicata if such document to be marked by way of secondary evidence after following the procedure contemplated by the relevant provisions of the Indian Evidence Act, 1872 (hereinafter in short referred to as "the Act" for the purpose of convenience). The counsel also would maintain that the mere fact that at a particular point of time an order was made by the Court would not operate as a bar in the light of the subsequent events, since the procedure as contemplated by the provisions of the Act, in fact, had been followed for reception of the said document in question by way of secondary evidence. The learned counsel also would maintain that the truth or otherwise of several of the disputed facts may have to be decided at the appropriate stage. The learned counsel also would maintain that the truth or otherwise of several of the disputed facts may have to be decided at the appropriate stage. The counsel also pointed out to Sections 35 and 36 of the Indian Stamp Act and would maintain that if a document is not hit by the said provisions, the same to be received by way of evidence and to be given exhibit mark subject to any objection, which may be decided at the stage of final hearing. The counsel also would maintain that admission of a document is only a first step and proof of the same would come later. The learned counsel also placed strong reliance on certain decisions to substantiate her submissions. 6. Per contra, M/s. Manjiri S Ganu, the learned counsel representing respondent had taken this Court through the contents of the order under challenge in the present civil revision petition and would maintain that in the light of the reasons recorded in detail, the document in question being a Xerox copy containing some calculations, the same being un-dated and unsigned, the learned Judge arrived at the correct conclusion in disbelieving the same and holding it as inadmissible. The learned counsel also pointed out to the prior events which had taken place and would maintain that the document in question is surrounded by certain suspicious circumstances and, hence, the learned Judge arrived at the correct conclusion by refusing to receive the disputed document by way of secondary evidence and to mark the same. The learned counsel also relied on certain decisions to substantiate her submissions. 7. Heard the counsel on record and perused the order under challenge in the present civil revision petition. 8. This civil revision petition is filed by the unsuccessful petitioner-plaintiff as against an order made in I.A.No.75 of 2008 in O.S.No.480 of 2005 on the file of IX Additional Senior Civil Judge (FTC), City Civil Court, Hyderabad. 9. The brief facts, which may be relevant for the purpose of deciding the present civil revision petition, are as hereunder. The petitioner was owner of the house bearing H.No.12-2-834/1. The respondent was a tenant of the 1st floor from the year 1995 and the rent originally agreed was Rs.5,000/- per month. 9. The brief facts, which may be relevant for the purpose of deciding the present civil revision petition, are as hereunder. The petitioner was owner of the house bearing H.No.12-2-834/1. The respondent was a tenant of the 1st floor from the year 1995 and the rent originally agreed was Rs.5,000/- per month. The respondent-defendant being a known party to the father of the petitioner-plaintiff B.V. Subbaiah, her power of attorney holder, the premises was delivered even without taking any document of lease. The respondent-defendant agreed to enhance the rent every year 5% for some years and 10% for other years. The petitioner is a non-resident Indian and her father also left India in the year 1999 and had been at United States of America for about 7 or 8 years and as the father of the petitioner also was away from India, respondent-defendant was instructed to deposit rents in the account of the petitioner, the general power of attorney holder of the petitioner had been visiting India once in a year and some times once in six months and whenever he had been visiting India, after making deductions which had been deposited in the account of the petitioner, the balance amounts were paid in cash to the father of the petitioner. The respondent being a businessman was only depositing a portion of the amount into the account of the petitioner and the balance amount payable was being paid to the father of the petitioner for which he was passing receipts. Such things continued till the month of August 2004 and then respondent-defendant vacated the house without intimation and without paying arrears of rent. The general power of attorney of the petitioner was left with no other option but to institute a suit O.S.No.480 of 2005 for recovery of arrears of rent. The monthly rent by the month of July 2004 was Rs.9,625/- and in July 2004 he gave a copy of statement of account in the handwriting of his son giving all the particulars of the amounts paid and amounts due. It is also stated that in the statement of account in his son's handwriting it is clearly stated that the monthly rent at the relevant point of time was Rs.9,625/- per month. It is also stated that in the statement of account in his son's handwriting it is clearly stated that the monthly rent at the relevant point of time was Rs.9,625/- per month. It is also stated that he retained the original and a Xerox copy was delivered and during the course of evidence of general power of attorney as P.W.1 an attempt was made to mark the Xerox copy. The learned Judge proceeded with the chief-examination by marking other documents, may be, on the ground that the Xerox copy cannot be admitted in evidence. The learned Judge, no doubt, recorded that on 08.02.2007 Exs.A-1 to A-12 were marked and the disputed document was refused to be marked and the matter was posted for cross-examination of P.W.1. Further it was recorded by the learned Judge that at the instance of the petitioner-plaintiff P.W.1 was recalled and Exs.A-13 to A-30 were marked on 18.4.2007 and even at that time when an attempt was made to mark the document, again the learned Judge refused to mark it on the ground that already the court refused to mark the said document on 08.2.2007. It was also further recorded that the present application was filed on 07.3.2008 for the purpose of marking Xerox copy of the statement and this being third attempt to mark the very same document, the same cannot be permitted. 10. It is needless to say that Xerox copy of such statement or calculations may be unsigned or undated definitely is not a primary evidence and it is secondary evidence. Section 65 of the Act dealing with cases in which secondary evidence relating to documents may be given reads as hereunder. 10. It is needless to say that Xerox copy of such statement or calculations may be unsigned or undated definitely is not a primary evidence and it is secondary evidence. Section 65 of the Act dealing with cases in which secondary evidence relating to documents may be given reads as hereunder. "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; (b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; .(c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d) When the original is of such a nature as not to be easily movable; (e) When the original is a public document within the meaning of section 74; (f) When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in (India) to be given in evidence; (g) When the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to b e proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents." 11. Section 66 of the said Act dealing with Rules as to notice to produce reads as hereunder. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents." 11. Section 66 of the said Act dealing with Rules as to notice to produce reads as hereunder. "Secondary evidence of the contents of the documents referred to in section 65, clause (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, [or to his attorney or pleader,] such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case; Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:- (1) when the document to be proved is itself a notice; (2) when, from the nature of the case, the adverse party must know that he will be required to produce it; (3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force; (4) when the adverse party or his agent has the original in Court; (5) when the adverse party or his agent has admitted the loss of the document; (6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court." 12. It is not in serious controversy that notice was given to respondent- defendant's counsel to produce the original and the counsel refused to comply with the request made in the notice totally denying the statement of account and in such circumstances the revision petitioner filed I.A.No.75 of 2008 on the file of IX Additional Senior Civil Judge (FTC), City Civil Court, Hyderabad, praying for permission to mark the Xerox copy of the statement said to be in the handwriting of the son of respondent-defendant. 13. Section 63 of the Act dealing with secondary evidence reads as hereunder. 13. Section 63 of the Act dealing with secondary evidence reads as hereunder. "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 insure 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." Illustration:(a)A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original. 14. Section 65 (a) of the Act specifies 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. Further it is specified that in cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. 15. The learned Judge was more guided away by the fact that the custody of the document i.e., original had been specifically denied by the respondent-defendant and, hence, deliberately a false notice had been issued for production of the original though the same is not in existence and no doubt certain other further grounds also had been specified. It is no doubt true that respondent-defendant denied the very existence of such original document in toto. The learned counsel representing respondent placed strong reliance on the decision of the Apex Court in (Ashok Dulichand v. Madhavlal Dube and another AIR 1975 Supreme Court 1748) wherein the Apex Court while dealing with Section 65 (a) of the Act in the context of Photostat copy of manuscript of leaflet and admissibility thereof in an election petition held at para 7 as hereunder. "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. "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 the 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 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. 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 4/07/1973, 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 that 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 of or having anything to do with such document. The photostat copy appeared to the High Court to be not above suspicion. The photostat copy appeared to 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." 16. Dr. Y. Padmavathi, learned counsel representing the revision petitioner placed strong reliance on the decision in Sukhrani v. Hari Shanker (AIR 1979 Supreme Court 1436) wherein the Apex Court at para 5 observed as hereunder. "It is true that at an earlier stage of the suit, in the proceeding to set aside the award, the High Court recorded a finding that the plaintiff was not entitled to seek reopening of the partition on the ground of unfairness when there was neither fraud nor misrepresentation. It is true that the plaintiff did not further pursue the matter at that stage by taking it in appeal to the Supreme Court but preferred to proceed to the trial of his suit. It is also true that a decision given at an earlier stage of a suit will bind the parties at later stages of the same suit. But it is equally well settled that because a matter has been decided at an earlier stage by an interlocutory order and no appeal has been taken therefrom or no appeal did lie, a higher Court is not precluded from considering the matter again at a later stage of the same litigation (vide Satyadhan Ghosal v. Smt. Deorajin Debi (1960) 3 SCR 590 : ( AIR 1960 SC 941 ). So, it has been held that the correctness of an order of remand passed by the High Court which was not questioned at that time by filing an appeal in the Supreme Court could nevertheless be challenged later in the Supreme Court in the appeal arising out of the final judgment pronounced in the action (vide Jasraj Indu Singh v. Hem Raj Multan Chand ( AIR 1977 SC 1011 ) and Margaret Lalita Samuel v. Indo Commercial Bank Ltd. AIR 1979 SC 102 ). In Arjun Singh v. Mohindra Kumar (1964) 5 SCR 946 at p. 960 : ( AIR 1964 SC 993 at p. 1000) it was held that where an application under Order IX, Rule 7 was dismissed and an appeal was filed against the decree in the suit in which the application was made, the propriety of the order rejecting the reopening of the proceeding might without doubt, be canvassed in the appeal and dealt with by the appellate Court. In our view the same principle applies in the present case and the parties can challenge in this Court in the appeal against the final judgment in the suit any finding given by the High Court at the earlier stage in the suit when the award made by the arbitrators was set aside and the suit thrown open for trial." 17. Reliance also was placed on the decision in Bipin Shantilal Panchal v. State of Gujarat and another (AIR 2001 Supreme Court 1158) wherein the Apex Court at paras 12, 13 and 15 observed as hereunder. "It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the Court does not proceed further without passing Order on such objection. But the fall out of the above practice is this: Suppose the trial Court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or revisional Court, when the same question is re-canvassed, could take a different view on the admissibility of that material in such cases the appellate Court would be deprived of the benefit of that evidence, because that was not put on record by the trial Court. In such a situation the higher Court may have to send the case back to the trial Court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realized through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-moulded to give way for better substitutes which would help acceleration of trial proceedings. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realized through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-moulded to give way for better substitutes which would help acceleration of trial proceedings. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed. We, therefore, make the above as a procedure to be followed by the trial Courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence." 18. In Marwari Kumhar v. Bhagwanpuri Guru Ganeshpuri AIR 2000 Supreme Court 2629 while dealing with Section 65 (c) and (f) of the Act the Apex Court held at para 11 as hereunder. In this case there is the additional factor that the factum of there being such a judgment was not denied. The respondents did not contend that the copy, which had been produced, was not the correct copy. All that the 1st respondent had pleaded was that the earlier judgment was not binding on him. The respondents were parties to the earlier proceedings. The 1st respondent was properly represented by his mother the 2nd respondent. The earlier suit had been hotly contested. The earlier judgment was, therefore, binding on both the respondents. In the earlier judgment it had clearly been held that the title to the property vested in the appellants. It was held that Ganeshpuri and the respondents were merely Pujaris. The 1st respondent was properly represented by his mother the 2nd respondent. The earlier suit had been hotly contested. The earlier judgment was, therefore, binding on both the respondents. In the earlier judgment it had clearly been held that the title to the property vested in the appellants. It was held that Ganeshpuri and the respondents were merely Pujaris. That judgment attained finality on 7th of May, 1948, when in the second appeal the decree was confirmed. Thus up to 7th of May, 1948, the respondents were in possession merely as Pujaris. Their claim to title, through Ganeshpuri, had been negatived by a competent Court. That finding was binding on the respondents. Both the first appellate Court and the second appellate Court failed to appreciate that on principles of res judicata respondents were precluded from denying appellants' title to the suit property. They were precluded from claiming that they had acquired title by adverse possession through Ganeshpuri. Both the Courts failed to appreciate that it was for the respondents to allege and show that after 7/05/1948 their possession became adverse. In the pleadings the claim to adverse possession is based on the claim that Ganeshpuri was in possession as owner. It is nowhere pleaded that after 7/05/1948 the possession became adverse. We have also read the evidence of the respondents. Nowhere has it been claimed that after 1948 the respondents or any of them had perfected title by adverse possession. The trial Court correctly appreciated this fact. Both the appellate Courts below fell in error in holding that the appellants had failed to prove title and that the respondents had established title by adverse possession. On the contrary the decree in the earlier suit established the title of the appellants and showed that the respondents were in possession merely as Pujaris. In the absence of any proof as to the date, time and the manner in which possession as a Pujari got converted into open, hostile and adverse the claim for adverse possession could not be upheld. In our view both the appellate Courts below have seriously erred, both in law and on facts, in dismissing the suit of the appellants." 19. In Bibi Aisha v. Bihar S.S.M. Avaqaf (AIR 1969 Supreme Court 253) while dealing with Section 65 (a) and (f) of the Act the Apex Court observed at para 3 as hereunder. In our view both the appellate Courts below have seriously erred, both in law and on facts, in dismissing the suit of the appellants." 19. In Bibi Aisha v. Bihar S.S.M. Avaqaf (AIR 1969 Supreme Court 253) while dealing with Section 65 (a) and (f) of the Act the Apex Court observed at para 3 as hereunder. "The Trial Court and in the High Court Misra J. accepted the testimony of Mehdi Hasan and held that the copy of the original waqfnama was admissible in evidence. We agree with this finding. Tarkeshwarnath J. ruled that the copy was not admissible mainly on the ground that paragraph 7 of the plaint stated that the deed of waqf was in the plaintiff's custody. We agree with Misra J. that the averment in the plaint should be regarded as a general statement referring to the true copy which was left in the plaintiff's office. Under S. 65 (a) of the Evidence Act secondary evidence may be given of the existence, or contents of a document 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, and when after the notice mentioned in S. 66, such person does not produce it. Where the case falls under S. 65 (a) any secondary evidence of the contents of the document is admissible. In the present case the conditions of S. 65 (a) were satisfied. The plain copy of the waqf was therefore admissible. On behalf of the appellant it was argued that Cl. (f) of S. 65 was applicable and that as the certified copy of the deed dated August 20, 1827 was permitted by the Evidence Act to be given in evidence a certified copy alone was admissible in evidence. There is no substance in this contention. If the case falls under clause (a) any secondary evidence of the document is admissible, though the case may also fall under clause (f). Clause (a) is not controlled by clause (f). In the case of A Collision Between The Ava, (1879) ILR 5 Cal 568 a question arose as to whether secondary evidence could be given of the contents of a certificate granted by the Board of Trade. The loss of the document attracted Cl. (c) of S. 65 and the failure to produce it after notice attracted Cl. (a). In the case of A Collision Between The Ava, (1879) ILR 5 Cal 568 a question arose as to whether secondary evidence could be given of the contents of a certificate granted by the Board of Trade. The loss of the document attracted Cl. (c) of S. 65 and the failure to produce it after notice attracted Cl. (a). Clause (f) of S. 65 was also applicable. Wilson J. ruled that a certified copy need not be produced and any secondary evidence was admissible. We agree with this decision. Wilson J. said: "by S. 65 in cases under Cls. (a) and (c) any secondary evidence is admissible; in cases under Cls. (e) and (f) only a certified copy. The present case falls under Cl. (a) or (c) and also under (f ). In such a case which rule applies? I think the words, "in cases (a), (c) and (d) any secondary evidence is admissible," are too clear and too strong to be controlled by anything that follows, and that, therefore, in this case any secondary evidence might bereceived. " 20. Further strong reliance was placed by the learned counsel representing revision petitioner on the decision of the Madras High Court in L.S. Sadapopan v. K.S. Sabarinathan AIR 2002 Madras 278 wherein the learned Judge of Madras High Court observed at paras 19, 24, 25 and 30 as hereunder. "The general principle is that if the original document exists and is available, it must be produced because it is the best evidence. However, if the original is lost destroyed, detained by the opponent, or third person who does not produce it before the Court or physically irrecoverable, the secondary evidence is admissible. The reading of the proviso to Section 65 of the Indian Evidence Act would make it clear that Section 65 of the Act has been enacted in order to safeguard the interest of the person who is unable to produce either the original or the secondary evidence of the types mentioned in Section 63 of the Act. Though Section 65(b) of the Act would provide for the admissibility of the certified copy of the original document, it is well settled that clauses (a) and (c) are independent of clause (f) and even an ordinary copy would be admissible. Though Section 65(b) of the Act would provide for the admissibility of the certified copy of the original document, it is well settled that clauses (a) and (c) are independent of clause (f) and even an ordinary copy would be admissible. According to the plaintiff (P.W.1), the original document was retained by the defendant and the copy of the document in which the defendant and his members of family signed was given to him and since the same was lost and that could not be traced, the Photostat copy of the agreement dated 14.5.1973 has been produced. On going through the evidence of P.W.1, it is clear that this document could be admitted as secondary evidence as provided under Sections 63(2) and 65 (c) of the Indian Evidence Act." 21. In Amangenti Prameela and another v. P. Venkat Reddy (Died) per LRs. and others 2004 (3) ALT 218 learned Judge of this Court observed at para 8 as hereunder. "Section 63 (2) of the Act recognizes copies made from original by mechanical process, which ensures the accuracy of the copy as one of the categories of secondary evidence. The trial Court did not express any doubt as to the authenticity of the Xerox copy of the document placed by the petitioners, since it was the reproduction through a mechanical process. Further, the petitioners have already called upon D. W. 1 to produce the original and there was no response to it. Thereby a circumstance, provided for under section 65 (a) of the Act emerges, enabling the Court to receive the secondary evidence." 22. In Gafarsab v. Ameer Ahmad AIR 2006 Karnataka 95 learned Judge of the Karnataka High Court observed at paras 5 and 6 as hereunder. "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. "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; counter parts of documents as against the parties who did not execute them and oral accounts of the contents of a document 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 reasons set out in S. 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 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 Ss. 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 opposite 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. 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 overruled, 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 refused to be received in evidence. It is totally irrelevant consideration at the time of admitting the documents in evidence. In that view of the matter, though the application filed by the defendant is totally misconceived, the reasoning 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 reason 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. Hence, I pass the following order:- (a) The impugned order is hereby quashed. Application filed by the petitioner- defendant is dismissed as not maintainable. (b) Notwithstanding the impugned order and this order, it is open to the defendant to lead secondary evidence in accordance with law and the trial Court is directed to admit such evidence subject to objections to be raised by the opposite party and decide the objections at the time of final disposal on merits and in accordance with law." 23. In Malkit Singh v. The Special Court N.D.P.S., Sri Ganganagar and others (AIR 2006 Rajasthan 81) learned Judge of Rajasthan High Court observed at paras 4, 5 and 6 as hereunder. In Malkit Singh v. The Special Court N.D.P.S., Sri Ganganagar and others (AIR 2006 Rajasthan 81) learned Judge of Rajasthan High Court observed at paras 4, 5 and 6 as hereunder. "So far as the contention of the petitioner that when one seek permission to produce the document as secondary evidence under Section 65 of the Evidence Act then the burden lies upon him to prove that the original document was executed and was or in existence and a copy sought to be produced is the document falling in any of the categories of the documents referred in Section 63 of the Evidence Act. For this it is suffice to say that the copy of the document sought to be produced by the plaintiff is alleged to be photo stat copy of the original document. The photo-stat copy obtained by the process of photo-state machine is a copy of the documents by mechanical process and the photo-stat machine ensures creation of true and correct copy. Therefore, the document sought to be produced can be presumed to be true and correct copy of the original document under sub-section (2) of section 63 of the Evidence Act. But as stated above, since the trial Court has not decided whether in fact family settlement document was in fact executed and was or is in existence, therefore, merely because the document has been admitted as secondary evidence will not absolve the plaintiff from proving the fact that the original document was in existence and executed. The trial Court cannot ignore its own order (impugned) wherein said objection was raised by the petitioner and has not been decided by the trial Court. It will be further relevant to mention here that before seeking permission to produce the copy of the family settlement dated 16-8-2003 as secondary evidence, the plaintiff served a notice upon the defendant under Order 11, Rule 14, C. P. C. and the trial court by order dated 3-5-2005 directed defendant No. 2 to produce family settlement dated 16-8-2003 but defendant No. 2 submitted affidavit on 13-5-2005 and stated on oath that the said family settlement has never came into existence as it was never exercised and, therefore, there arises no question of the said document to be in possession of defendant No. 2. After taking note of this fact, since the trial Court has allowed the application of the plaintiff under Section 65 of the Evidence Act, therefore, even after admission of the document as secondary evidence, the burden still lies upon the plaintiff to prove the document which he has produced as the copy of the original and the original was in fact executed and was in existence. Therefore, so far as the apprehension of the petitioner that by the impugned order dated 15-9-2005, the petitioner will be deprived from questioning the existence of the document dated 16-8-2003 is concerned, is having no legal foundation. I do not find any reason to set aside the order of the trial Court dated 15-9-2005 and direct the trial Court to hold an inquiry by taking evidence of the parties and decide the questions about the execution of the document in question and its due execution and pass a fresh order on plaintiffs application under Section 65 of the Evidence act when the petitioner shall have right to cross- examine and produce his evidence for the same purpose during trial. There appears no reason to hold trial within trial." 24. It is no doubt true that respondent-defendant specifically denied the very existence of the original document, much less the custody of such document. This Court is of the considered opinion that these aspects may have to be gone into at appropriate stage. There may be cases where the opposite party may deny the very existence of the document or custody of the original for extraneous reasons and with an ulterior motive. In every such case, necessarily the Court cannot come to the conclusion that such secondary evidence is not genuine and not bona fide. It would be just and proper to go into these aspects at the appropriate stage. It may be true that the learned Judge was not inclined to mark this document on the prior occasions, may be, for the reason that the procedure as contemplated in Sections 65 and 66 of the Act had not been followed or had not been complied with. The only objection, if any, in this regard may be that specifically respondent-defendant denied the same. 25. The only objection, if any, in this regard may be that specifically respondent-defendant denied the same. 25. It is made clear that the reasons which had been recorded touching the other merits and demerits relating to genuineness or otherwise of this document in question, secondary evidence may be gone into at the appropriate stage. It is also pertinent to note that merely because at a particular point of time on some ground, may be twice also, the Court was not inclined to permit the secondary evidence to be received as evidence when the procedure as contemplated by the provisions of the Act had not been complied with, in view of the fact that the other merits and demerits, inclusive of objections if any, may be gone into at the appropriate stage, since the parties are expected to let in oral evidence also in this regard and such parties also would be further cross- examined in this regard it may be just and proper to permit the petitioner to mark the document in question by way of secondary evidence subject to the condition of the learned Judge considering of the other aspects at the appropriate stage while deciding the suit. 26. Subject to the above observation, the impugned order under challenge in the civil revision petition is hereby set aside and accordingly the civil revision petition is allowed to the extent indicated above. No order as to costs.