@JUDGMENTTAG-ORDER
Nirmaljit Kaur, J.@mdashA suit for partition of the property in question is under adjudication before the trial court. After the demise of defendant No. 1 - Late Maharana Bhagwat Singh on 02.011.1984, respondent No. 2 - Smt. Yogeshwari Kumari is stated to be defendant No. 3/3 and the respondent No. 1 - Arvind Singh, who is defendant No. 4, is also making submission as defendant No. 1/1 in the partition suit. The petitioner-plaintiff Maharana Mahendra Singh Mewar is the eldest son of Late Maharana Bhagwat Singh and the defendant No. 4 i.e. respondent No. 1 in the present petition - Shri Arvind Singh is the legal heir and son of Late Maharana Bhagwat Singh. The petitioner-plaintiff submitted an application under Section 65 of the Indian Evidence Act, 1872 (for short hereinafter referred to as "the Act of 1872") with the prayer that the documents as described in the application be accepted as secondary evidence. The said application was rejected by the trial court vide Order dated 27.10.2014 which is under challenge herein. In his application under Section 65 of the Act of 1872, the petitioner-plaintiff sought to produce covenant dated 18.04.1948 executed between Late Maharana Bhupal Singh Mewar and the Union of India along with inventory of properties, declarations dated 01.04.1969 and 03.01.1972, other declarations dated 18.04.1970 and 20.01.1971, Written Note dated 12.05.1972 executed by Shri A. Subrahmanyam, Private Secretary of Late Maharana Bhagwat Singh Mewar along with cheque dated 03.04.1972 of Vijaya Bank Limited, Udaipur and list of 130 articles inside the jewellery box, order regarding sale of total articles dated 22.10.1955 and order regarding partition of golden and silver ornaments dated 28.10.1955 as the secondary evidence. While praying for setting aside the order impugned and seeking permission to produce the said documents as secondary evidence, learned counsel for the petitioner-plaintiff submitted that the said documents were important and are in the knowledge of the petitioner-plaintiff and they were in the power and possession of the defendant No. 1. Further, the defendant No. 1 had admitted in Para No. 8 of his written statement that the said documents were in his possession and that since they were admitted documents, the trial court should have no objection in allowing the petitioner-plaintiff to produce the copies of the same as secondary evidence. Besides, the respondent No. 1 is also appearing in the capacity of defendant No. 1/1 in the partition suit and is intentionally not producing the same and unfortunately, it was under these circumstances that the petitioner-plaintiff wanted to get exhibited the photo copies of said documents as secondary evidence, which is necessary for proper adjudication of the suit.
2. Learned counsel for the respondents while vehemently opposing the present petition submitted that application under Section 65 of the Act of 1872 for producing the documents as mentioned in the application as secondary evidence does not satisfy the conditions of Sections 63 and 65 of Evidence Act, 1872. The said application was not supported by an affidavit. It was also opposed on the ground that the documents were public documents and the petitioner-plaintiff made no effort to obtain either the certified copies of these documents and nor has the petitioner-plaintiff endorsed the said documents that they were copies of the original. They were unsigned typed copies.
3. Learned counsel for the parties were heard at length. On account of the nature of the controversy involved, it is necessary to refer to Sections 63 and 65 of the Indian Evidence Act, 1872. The same read as under:--
"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 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.
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;
(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 be 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.
4. 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. From a perusal of Sections 63 and 65 reproduced above, it is apparent that only certified copies of the original can be produced as secondary evidence and in case, the said copies are photo copies or copy in any other form of the original, the same should be certified that it has been seen and compared with the original. So far as the facts of the present case are concerned, the documents are neither certified copies nor photo copies. They are typed copies which are neither signed nor carry any endorsement that the same are copies of the original or that the same have been compared with either certified copy or an original. The authenticity of such a typed copy is doubtful and does not fall within the meaning of secondary evidence. In these circumstances, no fault can be found with the order of the trial court dismissing the said application. As per Section 65 of the Act of 1872, secondary evidence can be produced in case, it is shown that the original is in the possession of a person against whom the document is sought to be proved. The argument that the defendant No. 1 had admitted in Para No. 8 of his written statement that the same was with him does not help. The defendant No. 1 has since died. The defendant No. 4 i.e. respondent No. 1 - Shri Arvind Singh who is stated to be appearing in his capacity as defendant No. 1/1 has filed a separate reply and has not adopted the reply filed by the defendant No. 1. He has denied that the said document are in his possession and he has any knowledge of the same. Moreover, as per Section 65(a) itself, secondary evidence to such a document can be given only after the notice mentioned in Section 66 is given on such a person to produce the said document. No such notice was given to either of the defendants for producing the said evidence.
5. Besides the above, it is a well settled proposition of law that an application seeking permission to lead secondary evidence under Section 65 of the Evidence Act should be supported by an affidavit. The Apex Court in the case of
6. In fact, this Court is constrained to note that as per the averments made in the application under Section 65 of the Act of 1872, the petitioner-plaintiff wanted to produce photocopies of the documents, whereas, the copies are typed copies which do not carry any endorsement of the same being a copy of the original and nor are they endorsed.
Moreover, in order to produce the secondary evidence, a party must prove the existence and execution of the original document. The Apex Court in the case of
"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 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 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 a document. 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."
7. In the present case, as already discussed above, the present application is not supported by an affidavit, documents are typed and unsigned, there is no endorsement that they are copies of original and nor any notice was sent before filing the application. An application under Section 65 is subject to a large number of limitations. Thus, in a case where the parties have not been able to show whereabouts of the original document and unless it is supported by an authenticated evidence that the alleged copy is in fact the true copy of the original, it is not permissible for a court to allow a party to adduce such document in secondary evidence.
8. In view of the above, the order of the trial court cannot be interfered with. The present writ petition is, accordingly, dismissed being devoid of merit.
