IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18597 of 2011 Dwarika Prasad Versus Sumaiya Aftab ---------------------------------- O R D E R 05. 05.12.2011. 1. I have heard the learned counsel, Mr. Chandra Kant on behalf of the petitioner and the learned counsel, Mr. S.M. Shabbir on behalf of the respondent. 2. This application under Article 227 of the Constitution of India has been filed by the defendant- petitioner for setting aside the order dated 30.04.2011 passed by Munsif, Ist Siwan in eviction suit No.17 of 2009 whereby the Court below rejected the petition of the defendant-petitioner to mark the document as exhibit as secondary evidence. 3. The learned counsel for the petitioner submitted that the defendant had already paid Rs.60,000/- to the elder sister of the plaintiff- respondent as advance rent. The petitioner filed the photo copy of document and prayed for marking the said document. Earlier the Court below issued notice to Samira Aarjoo, the elder sister of the plaintiff who did not produce and, therefore, the petitioner prayed to mark the said photo copy of the receipt as exhibit according to Section 65 of the Evidence Act. The learned Court below illegally rejected the same. - 2 - 4. On the other hand, the learned counsel for the respondent submitted that photo copy cannot be permitted to be adduced as secondary evidence without accounting for the existence of the original. Moreover, this is an eviction suit on the ground of personal necessity only and, therefore, it is not relevant for consideration as to whether any amount was paid to the elder sister of the present plaintiff. The present plaintiff is separate than her sister and this application has been filed by the defendant only with a view to delay the eviction suit which is to be tried under the special procedure provided under Section 14 of the B.B.C. Act. 5. It is well settled principle of law that secondary evidence is an evidence which may be given in the absence of better evidence which law requires to be given first, when a proper explanation of its absence is given. 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 secondary evidence relating to the contents of a document is inadmissible until the non-production of the original is accounted for. The secondary evidence must be authenticated by foundational evidence that the alleged photo copy is the true copy of the original. Here, in the present case, a photo copy is sought to be adduced as secondary evidence. There is no possibility of the documents being compared with the original. - 3 - Moreover, in the present case, the eviction suit has been filed on the ground of personal necessity. The document which is sought to be adduced as secondary evidence has got no concern with the controversy which arises between the parties for decision in the eviction suit. In other words, so far the document is concerned, it is not related regarding the personal necessity. 6. Considering the above facts and circumstances of the case, the leaned Court below has rejected the application. Only because earlier the Court had given notice to the elder sister to produce the document, it is not necessary that the Court will always insist upon the production of the document or that the document which is inadmissible be allowed to be adduced as secondary evidence in the case. 7. In view of the above discussion, it appears that the learned Court below has rightly exercised a jurisdiction vested in it by law. The impugned order cannot be termed as illegal order or that any grave injustice has occasioned thereby. Therefore, I find no merit in this application. As such, this writ application is dismissed. Patna High Court, Patna The 5thday of December, 2011 Sanjeev/N.A.F.R. (Mungeshwar Sahoo,J.)