Whether the court can impound photocopy of the tenancy agreement?

 By these writ petitions, the original plaintiff as well

as defendant No.1 have challenged judgment and order dated

03/10/2019, passed by the District Judge-5, Nagpur, in

Miscellaneous Civil Application No. 208 of 2019, whereby

appeal filed by the original defendant No.1 has been allowed

and an agreement of tenancy has been impounded to pay

requisite stamp duty and penalty thereon and thereafter, it is

directed that the said document be exhibited for collateral

purpose. It is significant that the said document is not original

agreement dated 26/10/1999, but, a photo copy thereof.

17. Therefore, the position of law appears to be

absolutely clear to the effect that photo copy of a document

cannot be treated as an “instrument” under Section 2(l) of the

Maharashtra Stamps Act, 1958 and no order for impounding

such document can be passed. Thus, the Court below erred in

passing the impugned order directing that the document in

question i.e. photo copy of alleged agreement dated

26/10/1999, was to be impounded for payment of requisite

stamp duty and penalty thereon. As a result, the consequent

direction for exhibiting the document for collateral purpose

after payment of requisite stamp duty and penalty can also not

be sustained.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR

Writ Petition No. 8245 of 2019

Shri Pradeep Shyamrao Kakirwar, Vs.  Dr. Smt.Seema Arun Mankar,

CORAM : MANISH PITALE, J.

PRONOUNCED ON : 27.04.2020

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Whether the second wife can prove the first marriage of husband by producing a photocopy of his passport before Family court?

The burden of proof to establish that there subsisted a marriage, is on the appellant. The appellant not being the holder of the document, she could only have produced photocopies of the passports. The rigor of the Indian Evidence Act, 1872 is not to be applied in a proceeding before the Family Court in view of Section 14 of the Family Courts Act, 1984. In the judgment in Sithara v. Harikrishnan Nair [MANU/KE/1677/2011 : 2011 (4) KLT 492], a Division Bench of this Court held that when a wife filed petition for declaration of marriage as null and void and produces a photocopy of prior marriage certificate, propriety required that Family Court declare the marriage null and void based on undisputed averments in the affidavit. Under Section 14, the Family Court may receive as evidence any document, information or matter that may in its opinion assist it to deal with a dispute, whether or not the same would be otherwise admissible under the Indian Evidence Act, 1872. In the present case, the appellant has discharged her burden of proof by filing affidavit in proof and producing photocopies of the passports of the respondent.

12. The respondent has not cared to appear in the Family Court proceedings and to controvert the evidence adduced by the appellant. Section 10 of the Family Courts Act, 1984 requires Family Courts to follow the provisions of the Code of Civil Procedure, 1908 subject to the other provisions of the Act. Order VIII Rule 10 of CPC provides that where any party from whom a written statement is required fails to present the same, the court shall pronounce judgment against him or make such order in relation to the suit as it thinks fit. The counsel for the appellant relied on a Division Bench judgment of the Patna High Court in Arti Jaiswal v. Pawan Chaudhary and others [MANU/BH/1208/2016 : AIR 2016 Pat. 200] wherein it was held that in a proceeding for declaration of nullity of marriage on ground of subsistence of earlier marriage, when evidence on record by way of affidavit and pleadings remain unchallenged, subsistence of earlier marriage can be presumed.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Mat. Appeal No. 1132 of 2017

Decided On: 20.08.2019

 Namitha S. Nair  Vs.  V. Ravikanth

Hon'ble Judges/Coram:

C.T. Ravi Kumar and N. Nagaresh, JJ.

Citation: AIR 2020 Kerala 19

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Whether service of notice can be proved by proving photocopies of acknowledgment card containing signature of other side?

 The learned Family Court Judge found that Ext. B2 talaq nama allegedly communicated to the petitioner by the respondent on 17.10.1988 has not been proved to be communicated to the petitioner for the reason that he could not produce the originals of the acknowledgment cards. Exts. B3 to B6 are the photocopies of the acknowledgment cards. The signature of the petitioner is very clearly seen in Ext. B3 photocopy and the signature of the petitioner's father is also seen in Ext. B4 copy of the acknowledgment card. RW4 the Secretary of the Thottathumpady Muslim Jama-ath, who is examined as RW4 admits his signature in Ext. B5 copy of acknowledgment card. Ext. B6 is the copy of acknowledgment card, which is signed by the Secretary of the Mannathala Juma-ath Committee, Chavakkad. Ext. B4 signed by the father of the petitioner has also issued Ext. A7 certificate as President of the Mannathala Juma-ath Committee. It is true that the respondent was not able to produce the originals of acknowledgment cards. He would testify that he had entrusted the documents in original to his Advocate in connection with conducting of M.C. No. 20/1999 before the Judicial First Class Magistrate, Aluva and that the documents somehow got misplaced or lost. But the Advocate had the photocopies of the documents, which were produced for the purpose of this petition. The Advocate is examined as RW6 in support of this averment by the respondent. When an explanation is forthcoming regarding the non-availability of the primary evidence, secondary evidence could be accepted with explanations under Sections 63 and 65(c) of the Evidence Act, and according to us the explanation offered by the respondent as also his Advocate examined as RW6, would satisfy the reasons for producing photocopies of the acknowledgment cards. The rejection of those documents by the Family Court Judge does not appear to be proper.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Mat. Appeal No. 214 of 2006

Decided On: 08.07.2019

 P.U. Mohammed Basheer  Vs. N.P. Sulaikha

Hon'ble Judges/Coram:

V. Chitambaresh and Ashok Menon, JJ.

Citation: AIR 2019(NOC) 752 Ker

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Golden rules for proof of photocopy as secondary evidence

 In Surinder Kaur v. Mehal Singh and others MANU/PH/3614/2013 : 2014(1) R. C.R. (civil) 467 it has been held as under:-

"a) Photostat copy of a document can be allowed to be produced only in absence of original document.

b) When a party seeks to produce Photostat copy it has to lay the foundational facts by proving that original document existed and is lost or is in possession of opposite party who failed to produce it. Mere assertion of the party is not sufficient to prove these foundational facts.

c) The objections as to non existence of such circumstances or non existence of foundational facts must be taken at earliest by the opposite party after the photostat copy is tendered in evidence.

d) When the opposite party raises objection as to authenticity of the Photostat copy its authenticity has to be determined as every copy made from a mechanical process may not be accurate. Both the requirements of clause (2) of section 63 are to be satisfied.

e) Allowing production of Photostat copy in evidence does not amount to its proof. Its probative value has to be proved and assessed independently. It has to be shown that it was made from original at particular place and time.

f) In cases where the Photostat copy is itself suspicious it should not be relied upon. Unless the court is satisfied that the Photostat copy is genuine and accurate it should not be read in evidence.

g) The accuracy of photostat copy shall be established on oath to the satisfaction of court by the person who prepared such copy or who can speak of its accuracy."

18. In view of the above, it is a settled principle of law that mere exhibition of a document does not dispense with proof of its execution. Therefore, photostat copies of the documents are required to be proved in terms of their execution. 

IN THE HIGH COURT OF PUNJAB AND HARYANA

CR No. 5516 of 2007 (O&M)

Decided On: 14.03.2019

 Sham Gopal  Vs.  Ved Parkash and Ors.

Hon'ble Judges/Coram:

Jaishree Thakur, J.

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When service of notice by ordinary post is not proved?

This Court finds that the petitioner-firm has categorically pleaded before this Court that the show cause notice dt. 14.09.2016 was not received by it and assuming the said notice was sent by the regular post, no presumption of service can be drawn.

31. This Court finds that the respondents by way of additional affidavit have tried to justify the service of the said notice dt. 14.09.2016 by producing xerox copy of the dispatch register and postage register on record. This Court finds that sending of notice by showing any dispatch register through ordinary post does not prove the fact of service of such notice on the petitioner-firm.

IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

S.B. Civil Writs No. 17547/2016

Decided On: 19.01.2019

Agrofab Vs. State of Rajasthan and Ors.

Hon'ble Judges/Coram:

Ashok Kumar Gaur, J.

Citation: AIR 2019 Raj 34

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Whether a party can adduce secondary evidence of photocopy of insufficiently stamped document after impounding it?

 It was the case of the appellant-tenant that the original copy of the agreement which was with him was stolen and thus he was unable to produce the original document dated 28.3.1988, but was in possession of a photostat copy of the agreement and made a prayer for receipt of the photocopy of the agreement as secondary evidence under Section 63 of the Indian Evidence Act, 1872.

The provisions of this section (section 35) which allow a document to be admitted in evidence on payment of penalty, have no application when the original document, which was unstamped or was insufficiently stamped, has not been produced; and, accordingly, secondary evidence of its contents cannot be given. To hold otherwise would be to add to the Act a provision which it does not contain. Payment of penalty will not render secondary evidence admissible, for under the stamp law penalty is leviable only on an unstamped or insufficiently stamped document actually produced in Court and that law does not provide for the levy of any penalty on lost documents . This Court had an occasion again to consider the scope and ambit of Sections 33(1), 35 and 36 of the Act and Section 63 of the Indian Evidence Act in Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao and others AIR 1971 SC 1070 and held that :-

13. The first limb of Section 35 clearly shuts out from evidence any instrument chargeable with duty unless it is duly stamped. The second limb of it which relates to acting upon the instrument will obviously shut out any secondary evidence of such instrument, for allowing such evidence to be let in when the original admittedly chargeable with duty was not stamped or insufficiently stamped, would be tantamount to the document being acted upon by the person having by law or authority to receive evidence. Proviso (a) is only applicable when the original instrument is actually before the Court of law and the deficiency in stamp with penalty is paid by the party seeking to rely upon the document.

Clearly secondary evidence either by way of oral evidence of the contents of the unstamped document or the copy of it covered by Section 63 of the Indian Evidence Act would not fulfil the requirements of the proviso which enjoins upon the authority to receive nothing in evidence except the instrument itself. Section 35 is not concerned with any copy of an instrument and a party can only be allowed to rely on a document which is an instrument for the purpose of Section 35. `Instrument is defined in Section 2(14) as including every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished or recorded. There is no scope for inclusion of a copy of a document as an instrument for the purpose of the Stamp Act.

14. If Section 35 only deals with original instruments and not copies Section 36 cannot be so interpreted as to allow secondary evidence of an instrument to have its benefit.

Law is now no doubt well settled that copy of the instrument cannot be validated by impounding and this cannot be admitted as secondary evidence under the Indian Stamp Act, 1899.

SUPREME COURT OF INDIA

Hariom Agrawal Vs. Prakash Chand Malviya dated 8 October 2007.

B.N. Agrawal,P.P. Naolekar & P. Sathasivam

(arising out of Special Leave Petition (Civil)No.12573 of 2006)
Citation:(2007) 8 SCC 514
(2007)

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When will executed without probate is not admissible in evidence?

 The Trial Court has, therefore, not erred in rejecting the application of the petitioner under Section 65 of the Evidence Act as the basic document namely; Will executed in Calcutta sans a probate is not admissible in evidence hence, its photostat copy/secondary evidence cannot be tendered in evidence.

IN THE HIGH COURT OF RAJASTHAN

S.B. Civil Writ No. 1263 of 2018

Decided On: 06.10.2018

Kamal Kumar  Vs. Ankit Kumar and Ors.

Hon'ble Judges/Coram:

Dinesh Mehta, J.

Citation: AIR 2019 Raj 19.

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Whether bar as per O 2 R 2 of CPC can be proved on basis of photocopy of plaint?

True it is that the defendants have filed a photo copy, we cannot ignore that the law laid down by the Supreme Court in the case of Gurbux Singh (supra) lays down the legal requirement of filing the plaint as evidence to prove that the earlier suit was filed on the same cause of action as the subsequent suit and at that time, though the plaintiff could have asked for relief/reliefs sought in the subsequent suit, he omitted to do so and then without the leave of the Court, filed subsequent suit. Therefore, as emphatically propounded by Their Lordships in the Supreme Court in the recent decision, filing of the plaint, that means, leading of plaint as evidence in support of plea of non-maintainability of suit under Order 2 Rule 2 CPC was imperative. We do not find that the defendant, later on, filed any certified copy of the plaint or that his prayer to lead secondary evidence was allowed and the fact of having filed a suit earlier on the same cause of action was proved by leading secondary evidence or the learned Trial Court called for records of the earlier suit. Therefore, as the photo copy of the plaint was not admissible in evidence, it cannot be said that the legal requirement of filing the plaint of the earlier suit was even substantially complied with. The submission of learned counsel for the respondent that, the certified copy of the judgment of the earlier case refers to material plea taken by the plaintiff in its plaint in the earlier suit should be taken as proof as to what was the pleading, made by the plaintiff in the earlier suit, cannot be accepted. True it is that while delivering judgment in the earlier case, learned Trial Court in that case, referred to the pleadings but that cannot be said to be complete plaint being on record before the Court to examine whether the second suit ought to be held to be not maintainable under Order 2 Rule 2 CPC. We wish to emphasize that Their Lordships in the case of Gurbux Singh MANU/SC/0241/1964 : AIR 1964 SC 1810 (supra) noted that such a plea based on provisions contained in Order 2 Rule 2 CPC is a technical bar which has to be established satisfactorily and cannot be presumed merely on the basis of inferential reasoning which learned counsel for the respondent seeks us to do. Learned Trial Court recorded finding based on inferential process of reasoning and committed manifest error in law. Therefore, the impugned judgment is liable to be interfered with in this appeal.

IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR

FA No. 175 of 2011

Decided On: 09.07.2018

 Vikas Ahuja  Vs.  Jaiprakash Joshi and Ors.

Hon'ble Judges/Coram:

Manindra Mohan Shrivastava and Rajani Dubey, JJ.

Citation: AIR 2019 Chhat 15

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Whether court can decree the suit if written statement is not filed?

 Applying the said position of law to the facts of the present case would show that the appellant has relied heavily on a document termed as Partition Deed. Even in the absence of written statement on behalf of the respondents specifically denying the claims made by the appellant, the burden was on the appellant to prove the aforesaid document in terms of the requirements of law, in order to successfully claim the relief of declaration and other ancillary reliefs sought in the suit filed by him. The Courts below have found that the appellant failed to produce the original Partition Deed and that only a photocopy of the same was placed on record. It was stated in the evidence of the appellant that the original of the said document was with respondent No. 1, but, no efforts were taken by the appellant in terms of law to ensure that the original document was brought before the Court.

13. In the absence of the most crucial piece of evidence in support of the claims made by the appellant being brought on record, merely producing alleged witnesses to the said document before the Court was of no avail. In fact, the trial Court specifically records this aspect while rejecting the claims made by the appellant.

14. In the absence of written statement on behalf of defendants and deemed admissions by them, as claimed by the appellant, the law laid down by the Hon'ble Supreme Court places greater responsibility on the trial Court to ensure that the appellant has been able to prove his case to the hilt. In the present case, on the basis of material on record it is evident that the appellant, being the plaintiff, had miserably failed to produce cogent evidence on record to prove his case, even in the absence of written statement filed on behalf of the respondents. The view taken by the trial Court in this context cannot be found faulted with and the appellate Court has also confirmed the same by correctly applying the position of law.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 476 of 2015

Decided On: 10.04.2018

 Martand Vs.  Dilip Namdeorao Gotmare and Ors.

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2018(5) MHLJ 674

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SC:When Trial Court Records Are Summoned By Higher Courts Only Photocopy/Scanned Copy Of The Records Need To Be Sent To Avoid Delay

To give effect to directions in judgment of this Court
dated 28th March, 2018, noted above, we direct that wherever
original record has been summoned by an appellate/revisional
court, photocopy/scanned copy of the same may be kept for its
reference and original returned to the trial courts forthwith.
5. We also direct that if in future the trial court record is
summoned, the trial courts may send photocopy/scanned copy of
the record and retain the original so that the
proceedings are not held up. In cases where specifically2
original record is required by holding that photocopy will not
serve the purpose, the appellate/revisional court may call for
the record only for perusal and the same be returned while
keeping a photocopy/scanned copy of the same.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1375-1376 OF 2013
ASIAN RESURFACING OF ROAD AGENCY P. LTD. 
Versus
CENTRAL BUREAU OF INVESTIGATION 
Dated:April 25, 2018.

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Whether party can be permitted to produce photocopy of documents on record?

High Court of Delhi in the matter of Aktiebolagetvolvo (supra) has considered the aforesaid provisions and came to the specific conclusion, which states as under :-

"13. Thus reference in CPC to documents, except in Order 13, Rule 1 is not necessary to the original documents and includes copies within the document. Thus the contention of the counsel for the defendant of Order 7, Rule 14 or Order 8, Rule 1A of the CPC requiring originals to be filed is not found to be correct.

14. Even otherwise "document" is defined a Black's Law Dictionary 8th Edition inter alia as something tangible on which words, symbols or marks are recorded.

17. Document is also defined in Section 3(18) of the General Clauses Act as including any matter written, expressed or described upon any substance by means of letters, figures or marks or by more than one of those means which is intended to be used or which may be used for the purpose of recording that matter.

19. 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 the CPC."

6. The aforesaid decision has been subsequently followed with approval by the Delhi High Court in the matter of Promila and others v. Hazi Gulam Rasool, MANU/DE/4850/2012.

7. I am in respectful agreement with the view expressed by Delhi High Court in the aforesaid cases and held that photocopy can be taken into record under Order 8, Rule 1-A of the CPC.

IN THE HIGH COURT OF CHHATTISGARH

W.P. 227 No. 310 of 2017

Decided On: 28.04.2017

 Vijay Laxmi Sharma and Ors. Vs. Dushyant Kumar Sharma

Hon'ble Judges/Coram:

Sanjay K. Agrawal, J.

Citation:AIR 2017 Chhatis 187

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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 tender is liable to be cancelled for non submission of photocopy of pan card?

 In the above quoted condition, list of documents to be submitted along
with the tender is given. One of the documents in the list is photocopy of Pan
Card of Income Tax Department ( 4 chh). Admittedly, the 3rd highest bidder did
not submit the photocopy of Pan Card of Income Tax Department. But he did
submit the Income Tax Clearance Certificate. The purpose of submitting
photocopy of the Pan Card of Income Tax Department is only to ensure that
tenderer is an income tax assessee. This purpose can also be served by filing
the Income Tax Clearance Certificate. There is no mention in the terms and
conditions of the NIT that in the event of failure to submit photocopy of the Pan
Card of Income Tax Department, the tender shall be rejected. In the context of
the condition in question, the object is that the fishery is settled to an income
tax assessee. And that the 3rd highest bidder has fulfilled by submitting the
Income Tax Clearance Certificate. The Assam Fishery Rules, 1953 (in short
“Rules”), which are statutory and regulate the settlement of fishery in favour of
fishermen, do not provide for a condition of submitting photocopy of Pan Card
of Income Tax Department along with tender documents. The purpose of
settlement of fishery to fishermen, in our considered view, does not get
defeated in any manner due to non-submission of the photocopy of Pan Card of
Income Tax Department by the 3rd highest bidder. The authorities were thus
justified in accepting the tender of 3rd highest bidder as he had submitted the
Income Tax Clearance Certificate instead of Pan Card of Income Tax
Department. For these reasons, we are unable to agree with the learned Single
Judge that merely because the 3rd highest bidder did not submit the Pan Card  
of Income Tax Department, his tender deserved to be cancelled. In fact, the 3rd
highest bidder had substantially complied with the condition. 
IN THE GAUHATI HIGH COURT

WRIT APPEAL NO. 44 of 2015

No.11 Part-V Kallong Nadi Anchalik Meen Samabay Samity Ltd., 
Vs
 The State of Assam,
BEFORE
MR. JUSTICE AJIT SINGH, THE CHIEF JUSTICE
 MR. JUSTICE SUMAN SHYAM
Date of hearing & judgment : 14.6.2016

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Leading Judgment on pre-conditions for leading secondary evidence

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 13361 of 2015 (Arising out of SLP (C) No. 29621 of 2014)

Decided On: 06.11.2015

 Rakesh Mohindra Vs. Anita Beri and Ors.

Hon'ble Judges/Coram:M. Yusuf Eqbal and C. Nagappan, JJ.

 Citation: 2015(6)ABR822,2016 (114) ALR 253,(2016)16 SC
483.

The pre-conditions for leading secondary evidence are that such original documents could not be produced by the party relied upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the non-production of primary evidence. Unless, it is established that the original documents is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot accepted.[17]

It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence. At the same time, the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. It is equally well settled that neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispense with its proof, which is otherwise required to be done in accordance with law.[22]

 After considering the entire facts of the case and the evidence adduced by the Appellant for the purpose of admission of the secondary evidence, the Court is of the view that all efforts have been taken for the purpose of leading secondary evidence. The trial court has noticed that the photocopy of the Exhibit DW-2/B came from the custody of DEO Ambala and the witness, who brought the record, has been examined as witness. In that view of the matter, there is compliance of the provisions of Section 65 of the Evidence Act. Merely because the signatures in some of the documents were not legible and visible that cannot be a ground to reject the secondary evidence. In Court's view, the trial court correctly appreciated the efforts taken by the Appellant for the purpose of leading secondary evidence.[24]

 However, the Court makes it clear that mere admission of secondary evidence, does not amount to its proof. The genuineness, correctness and existence of the document shall have to be established during the trial and the trial court shall record the reasons before relying on those secondary evidences.[26]

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Whether copy of document can be impounded by court?

Family - Wills and Probates - Grant of succession certificate - Validity of partition deed - Determination there of - Application under Section 276 of the Indian Succession Act, 1925 was made requesting grant of probate - Trial Court did not determine questions of ownership of or title - Hence the appeal - Whether the Trial Court was required to decide on the regard to the validity of the partition deed in a probate application - Held, Court dealing with issue of grant of succession certificate, is not required to decide ownership or title to the property. Validity of partition deed is not required to be decided by Trial Court. Partition deed fell under category of documents which were to be compulsorily registered under Section 17(1)(b) Registration Act, 1908. Non-registration would not be received as evidence of any transaction affecting such property or conferring such power. Only such documents which were sufficiently stamped and registered was admissible in evidence. SC in Hariom Agrawal v. Prakash Chand Malviya, observed that impounding for payment of stamp duty and penalty are related only to instrument and not copy of the document as under Section 33 of Bombay Stamp Act, 1958. Photocopy of document cannot be termed as instrument under Section 2(14) of Indian Stamp Act, 1899 or Section 2(l) of Bombay Stamp Act, 1958. Trial Court rightly turned down request of Petitioner. Determination of question relating to entitlement of deceased to property was of a secondary character. Trial Court was justified in rejecting application tendered by Petitioner. No interference required. Civil Revision Application dismissed.

Bombay High Court

Gayabai Hemlal Jadhav vs 2 Sow Sayabai Latkan Jadhav on 5 May, 2011

Bench: R. M. Borde

Citation: 2011(4)ALLMR249, 2011(6)BomCR412, 2011(113)BOMLR1972, 2011(4)MhLj798

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How to prove photocopy of Ration card?

The photocopy of the alleged ration card could be proved and would be admissible only in absence of primary evidence. If the original evidence is not produced on account of failure of the party to file the same and it is not proved to be valid the same party is not entitled to introduce secondary evidence of its contents. In Smt. J. Yashoda (supra), the Supreme Court had held that secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or the other of the conditions provided for in Section 65 of the Evidence Act. This is not the case of the prosecution that the original record of the ration department of the year 1992 has been destroyed nor any other ground has been made out for production of this secondary evidence. The argument advanced by the Learned Public Prosecutor that the photocopy is admissible under section 65 (c) of the Evidence Act is reflective of non comprehension of the said provision and ignorance of the record of the Ration Department. Primary evidence  regarding the ration card is the record of the Ration Department on the basis of which the Ration Card is issued. Being a certified copy of record of the department, ration card is admissible under section 74 of the Evidence Act. However to prove the photocopy of the ration card, the record from the ration department should have been summoned. No effort was even made to call any official of the ration department regarding the alleged ration card. Perusal of the alleged photocopy also reveals that it does not bear a printed ration card number. Though, the registration number is given however, the printed/endorsed number is missing as also the photograph of the head of the family. In Arti Bhargava (supra), it was held by the Supreme Court that the genuineness of the photocopies cannot be guaranteed unless there is evidence that someone had compared the photocopies with the original or had obtained the photocopies from the original. In The United India Insurance Company Limited (supra), it was held that production of photocopy of driving license was not sufficient to prove that the driver had a valid license and its genuineness was not admitted.

Delhi High Court

Shakuntala vs State on 25 March, 2011

CORAM:

HON'BLE MR. JUSTICE ANIL KUMAR

HON'BLE MR.JUSTICE S.L.BHAYANA

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