THE HON'BLE MR JUSTICE G.V.SEETHAPATHY CIVIL REVISION PETITION No:6127 of 2009 ORDER: This Civil Revision Petition is directed against the order, dated 05.10.2009, in I.A.No.2468 of 2005 in O.S.No.177 of 2004 on the file of the learned Principal Senior Civil Judge, Rangareddy District, wherein the said application filed by the petitioner herein under Section 65 (a) of the Indian Evidence Act ( for brevity, ‘the Act’) seeking to receive the xerox copy of the rental agreement, dated 04.10.2001, by way of secondary evidence, was dismissed. 2. Heard both sides. Perused the records. 3. Petitioner herein filed the suit for eviction of the respondent-defendant from the suit premises and for recovery of arrears of rent of Rs.1,37,555/- and also for future damages by the petitioner. 4. Respondent filed written statement contesting the suit. During the course of the evidence, petitioner sought to file xerox copy of the rental agreement, dated 04.10.2001, on the ground that the original of the said document is with the custody of the respondent-defendant and in spite of the notice, the respondent-defendant has failed to produce the same. Respondent filed a counter opposing the said application on the ground that no such rental agreement, dated 04.10.2001, is in existence and therefore the question of the respondent’s failure to produce the same does not arise. The trial Court by the impugned order, dismissed the application on the ground that the petitioner failed to prove the existence of the rental agreement, dated 04.10.2001, or that it is in the custody of the respondent. Aggrieved by the same, plaintiff filed the present revision. 5. Section 65 (a) of the Act states that secondary evidence should be given of the existence, condition or contents of a document inter alia when the original is shown or appears to be in custody or power of the person against whom the document is sought to be proved and even after the notice mentioned in Section 66 of the Act, such person does not produce it. 6. Under Section 63 of the Act secondary evidence means and includes inter alia copies made thereof from original by mechanical process which in themselves insure the accuracy of the copy and copies compared with such copies. 7. In the present case, petitioner seeks to file a xerox copy of the alleged original agreement, dated 04.10.2001, stating that the said copy was obtained from the original by mechanical process. Such a document, which answers the description of secondary evidence within the meaning of Section 63 of the Act, can certainly be produced by way of secondary evidence under Section 65 (a) of the Act, when once it is shown that the original is in the possession of the opposite party and in spite of issuing notice under Section 66 of the Act the opposite party did not produce it. Section 65 of the Act does not contemplate that the party who seeks to produce secondary evidence has to establish or prove the existence of the original or its custody with the other party. What all it states is that when the original is shown or appears to be in the possession of the opposite party, it would enable the party to adduce secondary evidence, ofcourse, after issuing notice under Section 66 of the Act. 8. In the present case, petitioner has pleaded that the original is in the custody of the opposite party. No doubt, the respondent-defendant denies the very execution and existence of the said agreement, dated 04.10.2001. The said defence is open to him to raise at all appropriate stages. The mere permission to the petitioner to adduce secondary evidence through a xerox copy does not dispense with proof of the existence of the original or its custody with the defendant as alleged by the petitioner- plaintiff. The burden still lies upon the petitioner-plaintiff to establish that such document, dated 04.10.2001, was in fact, executed by the defendant and the same is lying in the custody of the defendant. It is open to the respondent- defendant to raise all such contentions, as are permitted under law with regard to the truth, validity and binding nature of the said document during the course of the trial. When once it is shown or made to appear to the Court that the original document is in the custody of the other side, petitioner is certainly entitled to produce the xerox copy of the same by way of secondary evidence. 9. In a decision reported in N.S.PRAKASH RAO V. BALA KRISHNA AND ANOTHER[1], this Court in similar circumstances, held as follows: “ Documents can be proved either by primary evidence or secondary evidence. Primary evidence means the document itself. Secondary evidence means certified copies of the documents, copies made from the original by mechanical process, copies compared with such copies and/or copies made from or compared with the original (Sections 61,62 and 63 of the Act). All documents as far as possible must be proved by primary evidence and secondary evidence may be given of the existence of the conditions or contents of the document, in the circumstances as defined under Section 65 of the Act, if the original is shown or appears to be in the possession of a person against whom the document is sought to be proved and after issuing notice to the person in possession of original document (Sections 65 (a) and 66 of the Act). Requirement of law is to give a notice to the possessor of the original document and in case he fails to produce original, secondary evidence can be offered. It may also be noticed that merely because secondary evidence is received the same does not amount to be proof. Even while secondary evidence is produced and permitted, document has to be proved in accordance with principles of evidence”. “The consistent view taken by this Court appears to be that subject to a party satisfying the conditionalities in Sections 65 and 66 of the Act, secondary evidence can be allowed whether or not the opposite party allegedly has custody of original document. If the original document is produced by the party after receiving notice under Section 66 of the Act, there would not be any necessity for producing secondary evidence. This was also observed by this Court in P.Meharunnisa Begum’s case ( supra) that generally a party would not be inclined to produce the original if such document goes against his case. Therefore, there cannot be any objection for producing secondary evidence”. 10. The above decision also makes it clear that the requirement of law is to give a notice to the possessor of the original document and in case he fails to produce the evidence, secondary evidence can be offered. It is further observed that merely because secondary evidence is received the same does not amount to proof and the document has to be proved in accordance with the law of evidence. Even the xerox copy of the original agreement, dated 04.10.2001, which is permitted to be produced by way of secondary evidence can be received by the Court only subject to proof and relevancy. In the circumstances, it is held that the impugned order, dismissing the application filed by the petitioner under Section 65 (a) of the Act, is wholly unsustainable and the same is accordingly set aside. 11. In the result, Civil Revision Petition is allowed as stated above. ______________________ G.V.SEETHAPATHY,J 24th October, 2011. Tsy [1] 2007 (5) ALD 641