Additional Evidence in First Appeal: Original Documents, Subsequent Events, and the Limits of Remand

Q :-  Documents were not produced before trial court as those documents were not traceable and were not exhibited as xerox copies were filed. whether any party can produce original documents before appellate court? whether appellate court can allow production of original documents at appellate stage only on the ground that those documents were not traceable at the time of proceeding before trial court?

Ans:- First appeals often raise a recurring procedural problem: can a party produce documents for the first time in appeal, especially when the originals were not filed before the trial court? The answer is yes, but only in limited circumstances, because additional evidence in appeal is an exception and not a matter of right.

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Delhi HC: The court should not insist for production of original documents if documents are undisputed

The filing of original documents is a requirement under law for a particular reason i.e., the originals constitute primary evidence and copies constitute secondary evidence. In most commercial transactions, the documents are not even disputed. The requirement of filing original documents ought to be insisted upon only when the parties actually dispute the documents which are on record. It should not be easy for any party to dispute the documents which actually relate to it and bear proper signatures. Insistence of filing of original documents when documents are not disputed causes enormous delay in adjudication of commercial disputes. The Court ought to bear in mind that original documents are required when allegations as to their genuinity or existence are raised and not in a technical manner in all situations.

12. In most civil disputes, documents exchanged between the parties, documents bearing signatures, correspondence exchanged between the parties, etc. are not disputed. It is the effect and interpretation thereof which is usually a matter of dispute. In such cases, the insistence of production of original documents and going through the entire journey of admission/denial etc., leads to unnecessary waste of judicial time, as also a lag in the dispensation of justice. Apart from these documents, there are other documents, for example publicly available documents etc., which should be accepted, unless and until there is a reason to doubt their authenticity. The insistence of filing original documents can result in injustice as is evident from the present case.

IN THE HIGH COURT OF DELHI

RFA 297/2015

Decided On: 31.01.2018

ICICI Bank Limited  Vs.  Kamini Sharma and Ors.

Hon'ble Judges/Coram:

Prathiba M. Singh, J.

Citation: MANU/DE/0438/2018

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Whether carbon copy of document signed by parties can be treated as original document?

The

High Court held that a carbon copy of a document which carbon copy

is signed by both the parties cannot be termed as an original

document under Section 62 of the Evidence Act. This finding of the

High Court is absolutely incorrect and against the provision of

Section 62 of the Evidence Act. This carbon copy was prepared in

the same process as the original document and once it is signed by

both the parties, it assumes the character of the original

document.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No(s). 6706/2013

MOHINDER SINGH  Vs JASWANT KAUR 

Dated:SEPTEMBER 11, 2019.

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Whether photocopies of documents can be exhibited subject to condition to produce original for inspection as and when required?

The question for consideration is, whether it is permissible in law to permit a party to a civil suit to file only photocopy of the document and exempt such party from placing the original document on the file of the court and merely to give inspection thereof to the opposite party at the time of admission/denial of documents and at the time of tendering the document into evidence and to put the Exhibit mark again on photocopy on the file of the court.

From all the aforesaid definitions of document found by me, a photocopy or a copy would also be a document. Thus it cannot be said that the provisions of the CPC for filing of documents necessarily relate to original documents. The legislature has used the word original only in Order 13 Rule 1 of CPC.

20. The next questions which arise are, as to whether under Order 13 Rule 1 of the CPC the original document has to be placed on the file of the court or to be merely given inspection of for admission/denial of documents; whether the Evidence Act while providing for proof of documents by primary evidence requires filing/placing of the original document on the record of the court.

21. There can be no manner of doubt that the Evidence Act providing in Section 64 thereof of proof of documents by primary evidence only means proof of the original document. Even though Section 62 defining the primary evidence as meaning the document itself, does not state original document but since Section 63 while defining secondary evidence includes "copies from the original" and "copies made from and compared with the original" it necessarily follows that only the original is primary evidence.

22. However, most importantly, Section 62 is as under:

62. Primary Evidence - Primary evidence means the document itself produced for the inspection of the court.

Thus even at the stage of proof, the requirement is only for production of the original for inspection of the court and not of filing of the original in the court. It cannot be argued that production for inspection of the court has to be necessarily by placing it on the file of the court. It can also be by producing it as and when directed by the court for inspection thereof.

23. When at the stage of proof of documents, the requirement under Section 62 of the Evidence Act is only of production of original for inspection of the court, Order 13 Rule 1 of the CPC requiring production of originals has to be necessarily meant as production of original for inspection of the court and not as filing of the original. Significantly, Order 13 Rule 1 also uses both expressions "produce" in connection with original and "filed" in connection with the copies. The different expression used, together with definition/meaning of produce cited by Counsel for plaintiffs also lend me to hold that the original documents are only intended to be produced i.e. to be given inspection of while the copies are to be filed.

24. I, therefore, find that the scheme of the aforesaid legislative provisions also permits production of originals for inspection only and filing of copies only.

25. However, Order 13 Rule 4 CPC and the practise directions in the trial of suits issued by this court, also provide for making of endorsement on documents admitted in evidence. The document which is admitted in evidence is the primary document i.e. the original. Is the endorsement of exhibit mark to be made on original only which would again mean placing it on court record? In my view No. These provisions are procedural. When the substantive law permits only production for inspection of original, once that has been done, the endorsement/exhibit mark can be put on copy on court record also.

26. The aforesaid should not be understood as laying down that in all cases the filing of photocopies is enough. If the document is doubtful or for any other reason required by the court to remain in original on the file of the court, the court can always direct so and a party cannot insist on filing of copy only. There may be other instances where filing of the original is necessary, as in the case of documents like Will, Agreements which may be terminated/cancelled by destruction. The courts can in such cases insist upon the original being filed on the record.

IN THE HIGH COURT OF DELHI

IA No. 5683/2008 in CS(OS) 516/2007

Decided On: 18.05.2009

Aktiebolaget Volvo and Ors. Vs.  R. Venkatachalam and Anr.

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw, J.

Citation: ( 2009 )ILR 6 Delhi 233,

MANU / DE / 1690 / 2009,

160 ( 2009 ) DLT 100.

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Whether court should grant unconditional leave to defend in summary suit if original documents are not produced?

 For the purpose of obtaining a summary judgment in terms of Order 37 of the Code, ordinarily the original documents must be produced. Original documents are not available. Appellant, therefore, is obligated to prove the loss of documents. Only because a suit has been entertained as a summary suit, the same by itself may not be a ground for passing of a judgment on mere asking. We have noticed the fact situation obtaining herein. The High Court was of the opinion that it is a case where unconditional leave should be granted. The question as to whether the defence of the respondents is 'moonshine' or not was not a matter which required consideration of the High Court at that stage. A decree could not have been granted on the basis of even photostat copies of the documents. [See Food Corporation of India v. Dena Bank, Indore and Anr. MANU/MP/0477/2003 : AIR2004MP158 ] Presumption in regard to a negotiable instrument or a bill of exchange in terms of Section 118 of the Act is also an evidence. It is true that a presumption can be raised that a bill of exchange was correctly stamped as provided for under Clause (f) of Sub-section (2) of Section 128 of the Code but a decree is to be passed by a court of law upon application of mind.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 573 of 2008 (Arising out of SLP (Civil) No. 5629 of 2007)

Decided On: 22.01.2008

Neebha Kapoor

Vs.

 Jayantilal Khandwala and Ors.

Hon'ble Judges/Coram:

S.B. Sinha and V.S. Sirpurkar, JJ.

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Whether state should not be permitted to lead secondary evidence in respect of original documents?

Petitioners are facing trial in FIR No.259/2005 registered at Police
Station Vivek Vihar, Delhi for the offence of cheating etc. in which
respondent-State’s application for secondary evidence stands allowed
vide impugned order of 17th October, 2014. Respondent-State has been
permitted to lead secondary evidence in respect of original documents
along with FSL report which was collected by Investigating Officer-SI 
Rajinder Singh Special Branch (North) from FSL Chandigarh.
At the hearing, learned counsel for petitioners had relied upon
decisions in Surinder Kaur v. Sadar Mangal Singh & Ors. 158 (2009)
DLT 1, Benga Behera & Anr. v. Braja Kishore Nanda & Ors. VI (2007)
SLT 252, Smt. Sulochana Devi Bubna v. Gobinda Chandra Nag & Ors.
AIR 1986 Calcutta 430, Mt. Atra Devi v. Ramswaroop Prasad Singh &
Ors AIR 1972 Patna 186, Mohanlal San & Anr. v. Samal Ram Potdar &
Ors AIR 1961 Patna 300, Smt. Bobba Suramma v. Smt. Peddireddi
Chandramma AIR 1959 Andhra Pradesh 568 and Jaldu Ananta Rahuram
Arya & Ors. v. Rajah Bommadevara Nagar Chayadevamma & Ors. AIR
1958 Andhra Pradesh 418 to submit that secondary evidence can be
allowed only when sincere efforts have been made to locate the
documents and not otherwise. Learned counsel for petitioners had drawn
the attention of this Court to application of 31st July, 2013 filed by the
Investigating Officer to point out that in this application it is vaguely
submitted by the Investigating Officer that he had handed over the FSL
report and original documents either to Naib Court or to Ahlmad of the
Court but they are not on record and had sought permission to lead
secondary evidence in respect of FSL report and the original documents.
According to learned counsel for petitioners, aforesaid averments do not
satisfy the requirements of Section 65(c) of the The Indian Evidence Act,
1872 and so impugned order allowing application for secondary evidence
of respondent-State deserves to be quashed.
Upon hearing and on perusal of the impugned order, application
filed, material on record and the decisions cited, I do find that such like
applications are not to be routinely allowed and the factum of loss of 
documents has to be established. 
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: August 12, 2015
 CRL.M.C. 5823/2014
MAHINDEER KAUR & ORS V STATE (NCT DELHI) & ANR .
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR

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Whether a party can be permitted to adduce secondary evidence when existence of original document is not proved?

Let me now deal with the photo copies of some of the documents filed on record. Section 63 of the Evidence Act provides- for leading secondary evidence. Secondary evidence cannot be accepted without sufficient reason being given for non production of the original. The loss of original document must be shown in order to lead secondary evidence. Secondary evidence of the document can be allowed to be lead only where original is proved to have existed but was lost or misplaced (see MANU/MH/0097/1973 : AIR1973Bom66 . Filmistan Private Ltd. Co. v. The Municipal Corporation for Greater Bombay). The document unless shown to have been compared with original one, mere copy of the document does not become secondary evidence. The person giving oral evidence who accounts for the contents must have himself seen the original document and not a mere copy. "Seen" here will obviously mean "read". A person who proposes to testify the contents of a document, either by copy or otherwise, must have read it. The contents of private documents may be proved as secondary evidence by any witness who has in fact read them. The secondary evidence is required to be proved in the same manner in which primary evidence.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION.
SUIT No.485 of 1989
Bank of India, V  M/s Allibhoy Mohammed, a

CORAM: V.C. DAGA,J.
DATED: 29th January,2008.
Citation: AIR2008Bom81, 2008(4)ALLMR808, 2008(5)BomCR847

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