// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.6928/2008 Satish Ajmera & Company and Another Versus Deepak Narayan S/o Shri Jagatnarayan and Another Date of Order ::: 11.08.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri R.K. Agarwal, Counsel for petitioners Shri Ashish Jain, Counsel for respondents #### By the Court:- Admit. Shri Ashish Jain, Advocate, appears for the respondents. Heard learned counsel for the parties. // 2 // Plaintiff-respondents instituted a suit for recovery against the defendant-petitioners and, during the pendency of that suit, the defendant-petitioners filed an application under Section 65 of the Evidence Act to produce secondary evidence in respect of two documents - Annexure-4 the so-called letter dated 25th November, 2000 and Annexure-5 the copy of ledger, on the record. The application was contested by the plaintiff-respondents. The trial court, vide its order dated 7th July, 2008, rejected the application, hence this writ petition has been preferred on behalf of the defendant-petitioners. The learned counsel for the petitioners contended that the learned trial court committed an illegality in rejecting their application on the ground that the same does not fulfill the conditions of Section 65 of the Evidence Act. He contended that even if the documents were doubtful the same should have been allowed to be produced as secondary evidence, as held by the Hon'ble Supreme Court in Nawab Singh Vs. Inderjit Kaur – (1999) 4 SCC 413 . The learned counsel for the respondents contended that these two documents sought to be produced in secondary evidence were never in existence and the same have been denied by them and they are only Photostat copies, which cannot // 3 // be allowed to be placed on the record under Section 65 of the Act, as held by the Hon'ble Supreme Court in Smt. J. Yashoda Vs. Smt. K. Shobha Rani – AIR 2007 SC 1721 . I have considered the submissions of learned counsel for the parties and examined the impugned order dated 7th July, 2008 passed by the trial court and also the other documents placed on the record with the writ petition. The Hon'ble Supreme Court in Nawab Singh's case (Supra) held that the trial court was not justified in rejecting the prayer seeking leave of the court for production of secondary evidence. The prayer has been rejected mainly on the ground that copy of the rent note sought to be produced by the appellant was of doubtful veracity. The trial court was not justified in forming such opinion without affording the appellant an opportunity of adducing secondary evidence. Para Nos.3 and 4 of the judgment are reproduced as under:- “3. Having heard the learned counsel for the parties, we are of the opinion that the trial court was not justified in rejecting the prayer seeking leave of the Court for production of secondary evidence. The prayer has been rejected mainly on the ground that the copy of the rent note sought to be produced by the appellant was of doubtful veracity. The trial court was not justified in forming that opinion // 4 // without affording the appellant an opportunity of adducing secondary evidence. The appellant has alleged the original rent note to be in possession of the respondent. The case was covered by clause (a) of Section 65 of the Indian Evidence Act, 1872. 4. Learned counsel for the respondent submitted that the appellant was protracting the trial and being in possession of the premises was interested in delaying the hearing of the suit. That may or may not be true but the fact remains that that is not the reason on which the rejection by the trial court is founded. In our opinion, the ends of justice would be satisfied if the appellant is allowed an opportunity of adducing secondary evidence but subject to terms.” The Hon'ble Supreme Court in J. Yashoda's case (supra) held that under Section 64 the documents to be provided by primary evidence. Section 65, however, permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of the documents cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section. Para 9 and 10 of the judgment are reproduced as under:- “9. The rule which is the most universal, // 5 // namely that the best evidence the nature of the case will admit shall be produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. 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. Under Section 64, documents are to be provided by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. 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 other of the cases provided for in the Section. In Ashok Dulichand v. Madahavlal Dube and Another [1975(4) SCC 664], it was inter alia held as follows: "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 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 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 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 // 6 // 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 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 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." 10. The admitted facts in the present case are that the original was with one P. Srinibas Rao. Only when conditions of Section prescribed in Section 65 are satisfied, documents can be admitted as secondary evidence. In the instant case // 7 // clause (a) of Section 65 has not been satisfied. Therefore, the High Court's order does not suffer from any infirmity to warrant interference.” So far as the present case is concerned, the plaintiff-respondents filed a suit for recovery of the amount. The defendant wanted to produce secondary evidence in respect of Annexure-4 the so-called letter dated 25th November, 2000 and Annexure-5 a copy of his own ledger. The contention of the learned counsel for the petitioners is that the letter dated 25th November, 2000 was written by the defendant- petitioner No.2 to the plaintiff-respondent No.1 and it is duly signed by plaintiff Deepak Narain. The same is the submission in respect of another document. The submission of learned counsel for the petitioners is that although both the documents belonged to them but they bear the signature of plaintiff Deepak Narain also. However, he is not in a position to explain as to how the signature of Deepak Narain has come on both the documents. If Deepak Narain would have put his signature on office copy or carbon copy or extra computer copy of these documents then the original signature of Deepak Narain on the same documents would have been with the defendant himself and not with the plaintiff-respondent. These are the simple Photostat copies of the documents manufactured // 8 // by defendants themselves. The trial court has considered the submissions of the learned counsel for the parties in detail and, after examining both the documents placed on the record, recorded a finding that existence of documents itself is not proved in the matter. The Photostat copies of the documents cannot be allowed to be led as secondary evidence on behalf of the defendants. In normal course when signature of the plaintiff is there on the documents Annexure 4 and 5 then the same should have been with the defendants but it appears that a Photostat copy of these documents with some another signature of the plaintiff has been prepared by defendants. In these circumstances, I find that the learned trial court was fully justified in rejecting the application of the defendant-petitioner under Section 65 of the Evidence Act. There is another reason also for rejecting the present writ petition. This Court, under Article 227 of the Constitution, does not act as an appellate court against the order passed by the trial court. I do not find any jurisdictional error in the order passed by the learned trial court so as to interfere with the same. There is no merit in this writ petition and the same is accordingly dismissed with no order as to costs. // 9 // (Narendra Kumar Jain) J. //Jaiman//