SB Civil Writ Petition No. 7732/07 Narayan v. Addl. District Judge(FT) No.3, Udaipur and anr. 1 SB Civil Writ Petition No. 7732/07 Narayan v. Addl. District Judge(FT) No.3, Udaipur and anr. Date of Order:- 23.1.2009 HON'BLE MR.JUSTICE PRAKASH TATIA Mr. Sandeep Shah for the petitioner. Mr. Deelip Kawadia for the respondent no.2 .... Heard learned counsel for the parties. The respondent's application filed under Section 65 of the Evidence Act was allowed by the trial court. Hence this writ petition has been preferred by the petitioner. The trial court allowed the application after closer of the evidence of the plaintiff. According to the learned counsel for the petitioner, the trial court has not considered a single reason for allowing the application. The plaintiff himself appeared in the witness box and his cross-examination was completed and at that time, he did not state that he lost the original document. There is no reference of the document in the plaintiff's pleadings. It is also submitted that the plaintiff failed to prove that original, copy of which has been produced, was in existence and further he did not prove that the photo-stat copy submitted by the plaintiff is the true and correct copy of the original. Therefore, none of the condition precedent for admitting the secondary evidence was satisfied yet the document has been admitted in evidence. According to the learned counsel for the petitioner, the defendant will not have any right to object for admitting of document in evidence on subsequent stage. It is submitted that the document is not trust worthy and, therefore, also the trial court should not have admitted the said document in question. SB Civil Writ Petition No. 7732/07 Narayan v. Addl. District Judge(FT) No.3, Udaipur and anr. 2 The learned counsel for the respondent submitted that this Court in the judgment delivered in the case of Sheldu & ors. v. Birdha & anr. (2002 (5) WLC (Raj.) 761) held that there is no necessity to hold preliminary enquiry for the document and in certain circumstances, the document can be admitted in evidence. I considered the submissions of the learned counsel for the parties and perused the facts of the case. The law is clear that when the original document is not traceable or destroyed or is not in possession of the party seeking to produce the copy of the document then secondary evidence can be admitted in evidence. It is also important that a copy must be of original and must be true and correct copy of the original and, therefore, the existence of original document is required to be proved. Without existence of original, there cannot be copy of the original. The issue is that whether after the order admitting the document without holding an enquiry for deciding the question about the existence of the original and without holding an enquiry about the fact that the copy produced is the true and correct copy of the original, the other party looses the right to object the admissibility of the document at subsequent stage and further question is when such enquiry be held by the court. Normal procedure was that whenever such document, that is copy of the original is produced, the court holds an enquiry and burden is upon the person seeking to produce the document, that is the copy of the original to prove that the original document was in existence and the copy sought to be produced is the true and correct copy of the original and the opportunity is given to the other party to contest these SB Civil Writ Petition No. 7732/07 Narayan v. Addl. District Judge(FT) No.3, Udaipur and anr. 3 issues and, thereafter, the court decides the issues referred above and after holding that the copy produced by the other party is the true and correct copy of the original, then the court passes the order to admit the document in evidence. Because of that procedure, some times, inordinate delay was caused because of holding trial within trial as by passing the order after trial for these issues during trial of main suit, the aggrieved party gets the opportunity to challenge that order resulting into multiplicity of the proceedings during pendency of one litigation only. It can be avoided, if the court prima facie finds that the copy of the document is copy of relevant document for the purpose of deciding the issue involved in the suit and is necessary to do the justice for the parties and prima facie there is reason to believe the correctness of the document, then the court may pass the order to admit the document with liberty to both the parties to lead evidence during trial of main suit with respect to their pleas. In that situation, if a document is admitted without preliminary enquiry, about the existence of original document and copy being true and correct copy of the original, then the court may put burden upon the party producing the document to prove the fact of existence of original document and the copy being true and correct copy of the original and in that situation, the order admitting the document under Section 65 of the Evidence Act of the nature referred above, amounts to only admitting the document for the purpose of holding enquiry for finding out its worth and value which can be decided after evidence of both the parties during main trial. It is true that by cursory manner, the trial court passed the order SB Civil Writ Petition No. 7732/07 Narayan v. Addl. District Judge(FT) No.3, Udaipur and anr. 4 admitting the document in evidence but this Court, while exercising power under Article 227 of the Constitution of India, will not interfere in such order as the petitioner shall have all rights to take objections about the existence of the original document and copy produced being true and correct copy of the original, in rebuttal to the plaintiff's evidence. With the above observations, the writ petition of the petitioner is dismissed. (PRAKASH TATIA)J. mlt.