HON’BLE SRI JUSTICE SANJAY KUMAR CIVIL REVISION PETITION No.698 of 2011 Date: October 21, 2011 Between: 1. Smt. Kistamma & another … Petitioners and 1. B. Ramachandra Reddy & 2 others … Respondents * * * HON’BLE SRI JUSTICE SANJAY KUMAR CIVIL REVISION PETITION No.698 of 2011 O R D E R: Permission granted by the trial court to mark in evidence photocopies of documents is called in question. 2. The suit, O.S. No.93 of 2006 on the file of the learned I Additional District Judge, Medak at Sangareddy, was instituted by the petitioners herein for partition and separate possession of the suit schedule properties. Defendants 1 and 3 in the said suit took the plea in their written statement that the suit schedule properties had already been subjected to oral partition on 23.12.1993 and that the same was thereafter reduced to writing in the memorandum dated 21.6.1994. Photocopies of these documents are stated to have been filed along with their written statement. They filed an application in I.A. No.1081 of 2010 in O.S. No.93 of 2006 under Section 65 of the Indian Evidence Act, 1872, to permit them to mark the photocopies of these documents in evidence. In the affidavit filed in support of this application, they stated that after thorough verification the originals of the said documents could not be traced out and that the same were lost. As the said documents were not public documents, they pleaded inability to obtain certified copies and accordingly prayed for the photocopies to be accepted. They further pointed out that the plaintiffs had not disputed the existence of these documents and, on the other hand, they had admitted the same during the course of cross- examination. 3. In their counter, the plaintiffs pointed out that defendants 1 and 3 did not say anything during their examination about the documents in question being lost permanently and that there was no evidence to support the plea that the documents were lost. They contended that the application had been filed only to drag on the matter and sought dismissal of the same. 4. By order dated 20.12.2010 the trial court, relying upon case law, observed that photocopies of documents can be allowed to be marked in evidence when originals were not available and there is no possibility of obtaining the originals within a reasonable time. The I.A. was accordingly ordered. Aggrieved thereby, the plaintiffs in the suit are in revision. 5. This Court granted interim stay of further proceedings in the suit pending the revision, by order dated 22.3.2011. 6. Heard Sri K. Govardhan Reddy, learned counsel for the petitioners-plaintiffs, Sri M. Baswaraj, learned counsel for the first respondent, and Sri M.Damodar Reddy, learned counsel for the second respondent. The third respondent, despite service of notice, remained un-represented. 7. Section 65 of the Indian Evidence Act, 1872, states to the effect that when the original of a document has either been destroyed or lost, secondary evidence may be given of the existence, condition, or contents of such document. Section 65 (b) states that 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, secondary evidence of such document may be permitted to be adduced in the form of the written admission. 8. Sri K. Govardhan Reddy, learned counsel for the petitioners, placed reliance on the judgments of the Supreme Court in J. Yashoda v. K. Shobha Rani[1] and H. Siddiqui (dead) by LRs. v. A. Ramalingam[2], and submitted that the conditions required for permitting the adducing of secondary evidence were not established in the present case. 9. I n J. Yashoda v . K. Shobha Rani (1 supra), the Supreme Court held that secondary evidence as a general rule is admissible only in the absence of primary evidence and in order to enable a party to produce secondary evidence, it is necessary for the party to prove existence and execution of the original document. The Court further held that the conditions laid down in Section 65 must be fulfilled before secondary evidence can be admitted and 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 cases provided for in the Section. The same principle is reiterated in H. Siddiqui (dead) by LRs. v. A. Ramalingam (2 supra), wherein the Supreme Court observed as under: “The provisions of Section 65 of the 1872 Act 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 the original documents are not produced at any time, nor has any factual foundation been laid 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 court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon.” 10. Applying the above principle to the present case, it is seen that the subject application was supported by an affidavit wherein it was categorically stated that after thorough verification, the originals of the documents in question could not be traced and that the same were lost. In so far as the loss of documents is concerned, there can be no positive evidence of the same other than the statement made by defendants 1 and 3. Further, it is relevant to note that the respondents-plaintiffs did not deny these documents and on the other hand, admitted their existence during their cross-examination. Their only objection is that defendants 1 and 3 did not state anything about the loss of these documents during their own examination. The failure on the part of defendants 1 and 3 in this regard cannot be said to be fatal. According to them, it was only after thorough verification that they found the originals of these documents could not be traced. It is not brought out by the petitioners-plaintiffs that such verification took place prior to their examination in the suit proceedings. Further, once the existence of these documents is admitted by the petitioners- plaintiffs, they cannot have any objection to the marking of the photocopies on the ground that the originals were lost. 11. The probative value of these documents would however have to be independently examined by the trial court at the appropriate stage. Mere marking of the documents in evidence, as pointed out in H. Siddiqui (dead) by LRs. v. A. Ramalingam (2 supra), would not lead to the automatic inference that the contents thereof have probative value. It would be for the trial court to examine this aspect at the appropriate stage. 12. On the above analysis, this Court finds that the requirements of Section 65 of the Indian Evidence Act, 1872, were duly complied with and there is no infirmity in the order of the trial court permitting the marking of the photocopies of the documents in question. 13. The civil revision petition is devoid of merit and is accordingly dismissed. There shall be no order as to costs. ____________________ SANJAY KUMAR, J Date: October 21, 2011. BSB [1] (2007) 5 Supreme Court Cases 730 [2] (2011) 4 Supreme Court Cases 240