ORDER : Petitioners being 1st & 3rd defendants in a partition suit in O.S.No.1209/2009 are knocking at the doors of the writ court for assailing the order dated 17.01.2020 vide Annexure-K whereby the learned XXXVIII Addl. City Civil Judge, Bengaluru having overruled petitioners objection has marked a xerox/photostat copy of Deed of Co-ownership dated 15.05.1996 as Exhibit-345, in the cross-examination of the witness concerned; the contesting respondents having entered appearance through their counsel resist the writ petition making submission in support of the impugned order. 2. Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant indulgence in the matter as under and for the following reasons: (a) Admittedly, suit is one for partition; petitioners happen to be the contesting defendants therein; during the course of trial, the subject document which is a xerox/photostat copy of alleged Deed of Co-ownership has been marked in the cross examination of Defendant No.2 by confronting the same under Order VII Rule 14(4) of the Code; the only reason stated by the Court below for marking the same is that the witness in the box ie., DW-2 admits it; this is completely erroneous, to say the least; the application of Order VII Rule 14(4) is confined to cross-examination of plaintiffs’ witness, which is not the case here; although, in a partition suit, ordinarily, the rank of parties pales into insignificance, the norm enacted in the said provision applies in the absence of a Counterclaim by the said defendant who was being cross-examined. (b) The subject document which appears to be a copy of the title deed, is marked apparently as a secondary evidence; this presupposes the existence of the primary evidence namely the original document; primary evidence is that which does not by its very nature suggests that better evidence may be available; secondary evidence is that by its very nature does suggest that better evidence may be available; the original of a documentary evidence constitutes primary evidence and a copy thereof is secondary evidence of its contents, needs no elaboration; the distinction is important in connection with documents, because their contents must, as a general rule be proved by production of the original, by virtue of the “Best Evidence Rule”, as articulated by Lord Hardvicke in OMYCHUND vs. BARKER (1745) I ATK. 21, AT P.49, as under: “The judges and sages of the law have laid it down that there is but one general rule of evidence, the best that the nature of the case will allow…” OMYCHUND vs. BARKER (1745) I ATK. 21, AT P.49. Thus where there was nothing better, recourse might be had to evidence which would otherwise be inadmissible; this well established rule of evidence has not animated the impugned order and thus there is an error apparent on its face. (c) Section 64 of the Indian Evidence Act, 1872, which has enacted the Best Evidence Rule requires that the contents of a document must be proved by the production of the original document and that the secondary evidence of it is not normally admissible; Section 65 enacts the exception to this rule by laying down the circumstances in which secondary evidence may be given; the principle is that as long as the original exists and is available, it being the best evidence must be produced; however, if it cannot be produced on account of loss/destruction/detention by others, who despite notice decline to produce or for such other reasons, then secondary evidence becomes admissible; the reason d’etre of this rule is stated by PORTER.J., in THOMAS vs. T, 1 La 166, 168 (Am) as follows: “The rule is only another form of expression for the idea that when you lose the higher proof, you may offer the next best in your power …. The rule does not mean that men’s rights are to be sacrificed and their property lost because they cannot guard against events beyond their control; it 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 that”. The section contemplates a situation wherein the document sought to be produced in evidence is in the possession of the opposite party or a third person. When it is in possession of the opposite party and secondary evidence of any document referred to in cl.(a) is desired to be given then notice to produce must be served on him as prescribed by Order XI Rule 16 of CPC except in the cases mentioned in the proviso to Section 66 of the Act. When it is in possession of the opposite party and secondary evidence of any document referred to in cl.(a) is desired to be given then notice to produce must be served on him as prescribed by Order XI Rule 16 of CPC except in the cases mentioned in the proviso to Section 66 of the Act. When service is proved and the opposite party fails to produce the document, the party serving notice becomes entitled to give secondary evidence of it. Sections 65 & 66 being cognate provisions need to be read together:both the sections relate to the admission of secondary evidence of a document and its conditions. Section 65 lays down the cases wherein secondary evidence of a document may be given and s.66 lays down that previous notice to produce must be given except in the cases saved by the proviso to the section. (d) Mr.D.L.N.Rao, learned Sr. Advocate appearing for the petitioner is more than justified in drawing the attention of the court to the last two sentences in para 10 of the plaint which read: “The original documents No.1, 2 & 6 are in the custody of Defendants. Hence the plaintiffs are herewith producing only the Xerox/photostat copies to this Hon’ble Court.” The original List of Documents initially filed along with the plaint shows that these specified documents are not the Deed of Co-ownership whose xerox/photostat copy is now marked; of course, the subsequent List of Documents filed years thereafter ie., on 08.09.2014 mentions about the original of this Deed being in the custody of one of the defendants; neither in the pleadings nor in the List of Documents nor in any application, this assertion of the plaintiff about its custody is controverted; no notice is issued to the defendants either, asking them to produce the original, which if issued would have arguably constituted some foundation for producing the secondary evidence; this being the position, there is a second error that further infects the impugned order. (e) It was contended by learned Sr. (e) It was contended by learned Sr. Advocate Smt. Susheela appearing for the respondents that the original of the document was seized by the Income Tax Department; however, that is not the case taken up in the pleadings or otherwise by the parties in the court below; even otherwise, when & in what circumstances such seizure took place, is not forthcoming; no notice is sent to the Income Tax Department for summoning of the original, nor any reason for not doing it, is stated; apparently, the properties involved are huge, their value arguably being very high; in such a circumstance, it cannot be said that any foundation is laid for producing the secondary evidence, the related argument as to the required nature & strength of such foundation, being beside the point. (f) Metaphorically speaking, the foundational facts which one needs to lay for producing the secondary evidence, need not be as robust as the foundation that is laid for the main building; but it has to be as strong as the one that is put for the erection of a structure like an outhouse; even this standard is not met by the contesting respondents who seek to produce a photostat copy of the document in question, by way of secondary evidence; the Apex Court in Siddiqui Vs. A. Ramalingam, (2011) 4 SCC 240 at para 12 has observed as under: “Provisions of Section 65 of the Act 1872 provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where original documents are not produced at any time, nor, any factual foundation has been led for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon…” (g) The vehement contention of learned Sr. Advocate Smt.Susheela that the Xerox copy of the document is only marked that too with the admission of the witness in the box who happens to be one of the defendants and therefore, the foundation should be taken to have been laid, is bit difficult to countenance; true it is that, mere marking the copy of a private document does not tantamount to proof of its contents’ execution; the decision of the Co-ordinate Bench in K.Anjaneya Setty Vs. K.H. Rangaiah Setty, ILR 2002 KAR 3613 cited by the counsel, does not come to rescue of the respondents; at para 13 therein, the learned Co-ordinate Judge has stated: “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… ” This Ruling specifically emphasizes tentative marking of a document which is objected; even this has not happened in the case at hands; similarly, at para 30, learned Judge has observed as under: “…the proper course for the Courts would be to mark such documents, subject to objections, permit the parties to adduce evidence, instead of putting questions to the lawyers at the time of argument to state for what purpose they are relying on the said document. Thereafter consider the respective contentions at the time of final hearing and then decide whether the said document could be looked into for collateral purposes and whether non-registration of the said document has made it inadmissible in evidence. Thereafter consider the respective contentions at the time of final hearing and then decide whether the said document could be looked into for collateral purposes and whether non-registration of the said document has made it inadmissible in evidence. Therefore, the approach of the Court below cannot be sustained…” These observations are confined to an original document which being compulsorily registrable, was not so registered and which was not duly stamped; after all, the context of the observations cannot be lost sight off while adjudging the invocability & precedential value of a decision, cited at the Bar. In the above circumstances, this Writ Petition succeeds; a writ of certiorari issues quashing the impugned order to the extent it marks in evidence the Xerox copy of the document in question; however, even now, it is open to the respondents to lay a fresh foundation as provided u/s 65 of the Indian Evidence Act, 1872, for producing the secondary evidence of the document in question. Costs made easy.