Secondary Evidence—

Order VII Rule 14(1)— when a plaintiff sues upon a document or relies
upon document in his possession or power in support of his claim, he shall
enter such documents in a list, and shall produce it in Court.

Production of document on which plaintiff sues or relies—

(1) Where a plaintiff sues upon a document or relies upon document in his
possession or power in support of his claim, he shall enter such documents
in a list, and shall produce it in court when the plaint is presented by him
and shall, at the same time deliver the document and a copy thereof, to be
filed with the plaint.

(2) Where any such document is not in the possession or power of the
plaintiff, he shall, wherever possible, state in whose possession or power it
is.

(3) A document which ought to be produced in Court by the plaintiff when

the plaint is presented, or to be entered in the list to be added or annexed to
the plaint but is not produced or entered accordingly, shall not, without the
leave of the Court, be received in evidence on his behalf at the hearing of
the suit.

(4) Nothing in this rule shall apply to document produced for the cross-
examination of the plaintiff's witnesses, or, handed over to a witness merely
to refresh his memory.

O 8 R 1-A of CPC

1-A. Duty of defendant to produce documents upon which relief is claimed or

relied upon by him—

(1) Where the defendant bases his defence upon a document or relies upon
any document in his possession or power, in support of his defence or claim
for set-off or counter-claim, he shall enter such document in a list, and shall
produce it in Court when the written statement is presented by him and
shall, at the same time, deliver the document and a copy thereof, to be filed
with the written statement.
(2) Where any such document is not in the possession or power of the
defendant, he shall, wherever possible, state in whose possession or power
it is.

(3) A document which ought to be produced in Court by the defendant under

this rule, but, is not so produced shall not, without the leave of the Court, be
received in evidence on his behalf at the hearing of the suit.

(4) Nothing in this rule shall apply to documents—

(a) produced for the cross-examination of the plaintiff's witnesses, or
(b) handed over to a witness merely to refresh his memory.

O 13 R 1 of CPC

1. Original documents to be produced at or before the settlement of issues

—

(1) The parties or their pleader shall produce on or before the settlement of
issues, all the documentary evidence in original where the copies thereof
have been filed along with plaint or written statement.

(2) The Court shall receive the documents so produced:

Provided that they are accompanied by an accurate list thereof prepared

in such form as the High Court directs.

(3) Nothing in sub-rule (1) shall apply to documents—

(a) produced for the cross-examination of the witnesses of the other
party; or
(b) handed over to a witness merely to refresh his memory.

O-41 (R. 27) of CPC

Production of additional evidence in Appellate Court—

(1) The parties to an appeal shall not be entitled to produce additional

evidence, whether oral or documentary, in the Appellate Court. But if—
(a) the Court from whose decree the appeal is preferred has refused to
admit evidence which ought to have been admitted, or
 [(aa) the party seeking to produce additional evidence, establishes
that notwithstanding the exercise of due diligence, such evidence
was not within his knowledge or could not, after the exercise of due
diligence, be produced by him at the time when the decree
appealed against was passed, or]
(b) the Appellate Court requires any document to be produced or any
witness to be examined to enable it to pronounce judgment, or for
any other substantial cause,

The Appellate Court may allow such evidence or document to be produced or

witness to be examined.

(2) Whenever additional evidence is allowed to be produced by an

Appellate Court, the Court shall record the reason for its admission.

Elements of secondary evidence

Certified copies given under the provisions contained—

Section 76 of the Evidence Act describes the certified copies. It lays down
that every public officer having the custody of any public document, in
relation to which any person has a right to inspect, shall give a copy of that
document on demand and on payment of the requisite fee. At the feet of
such copy, a certificate must be affixed declaring that it is a true copy of the
said copy. The date of the copy, the name and official title of the officer who
has subscribed to such copy, and the seal of the officer must also be affixed
on that copy.

Copies that are produced from the original by mechanical process

It was observed in a relevant case law that:

1. A photocopy of the original document can be allowed to be

presented as secondary evidence only in the absence of the original
document.

2. When a photostat copy is presented as evidence, it is on the party

producing it to prove that the original document existed and is lost
 or is in possession of the opposite party who failed to produce it.
Mere assertion is not sufficient to prove it.

3. After the photocopy is produced in the court as evidence, the

opposite party must raise its objections regarding the non-existence
of such circumstances or foundational facts at the earliest.

4. When any such objections are raised, the authenticity of the copy
must be determined as every copy produced from the mechanical
process might not be accurate.

5. Mere production of copy as the evidence does not amount to its

proof. Its correctness has to be evaluated and proved
independently. It has to be shown that it was made from the
original document at a specific time and place.

6. In instances where the photostat copy is itself suspicious, it is not to

be relied upon, unless the court is satisfied that it is genuine and
accurate.

7. The genuineness of the copy is to be proved on oath by the person

who made the copy or who can vouch for its accuracy, to the
satisfaction of the court.

Copies produced from or compared with the original

This provision is further elaborated by the illustration attached with Section

63. It states that a copy transcribed from a copy is admissible as secondary
evidence only when compared with the original. If the copy is not compared
with the original, it is not considered to be secondary evidence, even though
the copy from which it was transcribed was compared with the original.

Counterparts of documents as against the parties who had not

executed them

This provision states that the counterparts of documents are admissible as

secondary evidence against the person who had not executed it.

Oral accounts of the contents of a document given by the person who has
himself seen the document
Oral accounts of a person about the content of a document must be closely
examined. Not examining the informant or not presenting the report of that
person is fatal and such a person’s report cannot be relied upon in such a
case.

Circumstances in which secondary evidence is admissible in place of

primary evidence

Section 65 of the Indian Evidence Act enlists the circumstances under which
secondary evidence is admissible in place of primary evidence. They are as
follows:

A. In the instance where the original document is shown or appears to be

in the possession of or power of-

1. The person against whom the document is sought to be proved; or

2. The person who is out of reach or not subject to the process of the
court; and

3. The person who is legally bound to produce it but has not done so
despite a notice being served under Section 66.

B. In the case where the contents, existence, or contents of the original

document have already been proved to be admitted in writing by the
person against whom it is proved or his representative interest. It was
held that in a case where the defendant himself had admitted to
having made the payment under the cheque, the absence of the
cheque as primary evidence can be dispensed with and this would not
vitiate the suit.
C. C. In a situation, wherein the original has been lost or destroyed, or
the party who is presenting the evidence cannot present it in
reasonable time due to any reason other than his default or neglect;
D. D. In case where the original document is not of such nature that it is
not movable so as to be presented before the court for inspection;
E. E. In an instance where the original document is a public document
within the meaning of Section 74;
F. F. In a situation where the original is a certified copy that is permitted
by this Act or any other law in force in India to be given in evidence;
 G. G. In the case where the original consists of numerous accounts or
documents which cannot be conveniently all examined by the court, or
the fact which is to be proved is the general result of the whole
collection.

In cases ‘A’, ‘C’, and ‘D’, secondary evidence of the contents of the
document is admissible. In the case of ‘B’, only the written evidence is
admissible. In the case of ‘E’ or ‘F’, only the certified copy of the document
shall be admissible as secondary evidence. Lastly, in the case of ‘G’,
evidence to be presented as the general result of the documents collectively
must be given by a person who has examined them and is skilled in the
examination of such documents.

Circumstances when notice is not required to render secondary

evidence

As per Section 66, in the following circumstances, there is no need to render

a notice for the presentation of secondary evidence:

1. When the document to be presented itself amounts to notice;

2. When it is evident from the case that the adverse party should itself
realize that he will be required to create it;

3. When it is proved that the opposite party has gotten the ownership
of the first by fraud or force;

4. When the adverse party or his representative has already submitted

the original in the court;

5. When the adverse party or the representative has accepted the loss
of the document; and

6. When the individual having the possession of the report is far away
or is covered under the jurisdiction of the court.

Sec. 144 of the Evidence Act reads as under:

7. 144. Evidence as to matters in writing—Any witness may be asked,

whilst under examination, whether any contract, grant or other
disposition of property, as to which he is giving evidence, was not
 contained in a document, and if he says that it was, or if he is about
to make any statement as to the contents of any document, which,
in the opinion of the Court, ought to be produced, the adverse party
may object to such evidence being given until such document is
produced, or until facts have been proved which entitle the party
who called the witness to give secondary evidence of it. A witness
may give oral evidence of statements made by other persons about
the contents of documents if such statements are in themselves
relevant facts.

Sec. 22 – If Document Available, Oral ADMISSIONS of its Author Ignored

Sec. 22 of the Evidence Act reads as under:

8. 22. When oral admissions as to contents of documents are relevant.

—Oral admissions as to the contents of a document are not
relevant, unless and until the party proposing to prove them shows
that he is entitled to give secondary evidence of the contents of
such document under the rules hereinafter contained, or unless the
genuineness of a document produced is in question.
9. Sec. 22 emphasises one thing positively – excepting the two
circumstances exempted (when entitled to give secondary evidence
and the genuineness of a document is in question) oral
admissions on contents of a document (i.e. admission by its author
or a person under him) are not relevant. In other words, even if
such an evidence is tendered it will not be looked into by the court.

Certified copy of a Regd. Sale Deed does not fall u/s. 65(f)

Section 76 of the Evidence Act provides for certified copies.

Genuineness of certified copies can be presumed under Section
79 read with ‘regularity’ under Sec. 114, Evidence Act. Therefore, the
certified copy of a registered sale deed shall be admissible as
secondary evidence, as provided under Sec. 63. Should there Total Bar
for Exhibiting Photocopy of a Sale Deed (Other Than a Certified
Copy) under Section 65 clause (f)—

Sec. 65 clauses (e) and (f) read as under:

 “(e) when the original is a public document within the meaning of section
74;
 (f) when the original is a document of which a certified copy is permitted by
this Act, or by any other law in force in India to be given in evidence.”

Sec. 65 further lays down –

 “In case (e) or (f), a certified copy of the document, but no other kind of
secondary evidence, is admissible.”

By virtue of the above provisions in Sec. 65, it is often debated that ‘a

certified copy’ of the Sale Deed alone, and “no other kind of secondary
evidence, is admissible”. It is not well-founded; because,

 the copy of the deeds in the Books in the Sub Registrar’s Office is not “a
public document within the meaning of section 74” – referred to in clauses
(e) of Sec. 65.
 the copy of the deeds in the Books in the Sub Registrar’s Office is not “a
document of which a certified copy is permitted by this Act, or by any other
law in force in India to be given in evidence” – referred to in clauses (f) of
Sec. 65.

No (procedural) law permits production of ‘certified copy’ of a sale deed, in

the court, without saying where the original is or it is lost (i.e., without
laying the foundational evidence for the non production of the original) .

Therefore, it is beyond doubt that any (admissible) kind of secondary

evidence of a sale deed can be given in evidence. In a relevant commercial
application case, it was pointed out that, for the purposes of creating an
equitable mortgage, the copy of a transfer-deed is not (ordinarily) a
‘document of title’, and that there may be cases where the original
document is lost and there are no chances of that document being made use
of for any purpose; and in such a circumstance the next best evidence of the
owner’s title to the property would be a certified copy of that document.

S. 65, Evidence Act enumerates the instances where a party is entitled to

furnish secondary evidence. It is a condition precedent to establish the
circumstances laid down in S. 65, for letting in secondary evidence of a
document. Pointing out the right and duty of the court to prevent rushing of
 inadmissible and irrelevant evidence, it is held in a good number of decisions
that the court is under an obligation to exclude such materials, at the
threshold

Secondary Evidence – Should Non-production of Original

(Invariably) be Accounted for—

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
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. [H.
Siddiqui v. A. Ramalingam: AIR 2011 SC 1492; Nandkishore Lalbhai Mehta
v. New Era Fabrics: AIR 2015 SC 3796]

In Rakesh Mohindra v. Anita Beri [2015AIR(SCW) 6271] it was held:

 “Mere admission of secondary evidence, does not amount to its proof. The
genuineness, correctness and existence of the document shall have to be
established during the trial and the trial court shall record the reasons before
relying on those secondary evidences.”

Doctrine of Waiver – It being a matter ‘with reference to’ admissibility of a

document doctrine, of waiver applies.

Apparent Confutation Solved – The apparent confutation in this regard

can be resolved taking following propositions:

 Assertive conditions in Sec. 65 as to production of secondary evidence is

mandatory in nature; but not indispensable for it can be waived by the other
side, it being a procedural in character.
 The court has discretion in ‘insisting‘ original or an authenticated copy; for, it
can resort to:
 (i) best evidence rule,
 (ii) doctrine on probative value of evidence and
 (iii) theory of judicial-conscience, justice etc.
 Photocopy is a Reliable Secondary Evidence

It falls under Sec. 63(2) it being the product of ‘mechanical processes which
in themselves insure the accuracy of the copy‘.

As regards Photocopy, it wass laid down in Surinder Kaur v. Mehal Singh,

2014(1) R.C.R. (civil) 467 (P&H) as under:

 Photostat copy of a document can be allowed to be produced only in absence

of original document.
 When a party seeks to produce Photostat copy it has to lay the foundational
facts by proving that original document existed and is lost or is in possession
of opposite party who failed to produce it.
 Mere assertion of the party is not sufficient to prove these foundational
facts.
 The objections as to non existence of such circumstances or non existence of
foundational facts must be taken at earliest by the opposite party after the
photostat copy is tendered in evidence.
 When the opposite party raises objection as to authenticity of the Photostat
copy its authenticity has to be determined as every copy made from a
mechanical process may not be accurate. Both the requirements of clause
(2) of section 63 are to be satisfied.
 Allowing production of Photostat copy in evidence does not amount to its
proof. Its probative value has to be proved and assessed independently. It
has to be shown that it was made from original at particular place and time.
 In cases where the Photostat copy is itself suspicious it should not be relied
upon. Unless the court is satisfied that the Photostat copy is genuine and
accurate it should not be read in evidence.
 The accuracy of Photostat copy shall be established on oath to the
satisfaction of court by the person who prepared such copy or who can
speak of its accuracy.”
 It appears that the proposition, ‘accuracy shall be established on oath’, is a
surplusage (for, a photocopy, by itself, ‘insures the accuracy of the copy’
under Sec. 63, and the court is free to apply the presumptions under Sec.
114).

One of the critical aspects is when the original is a public document within
the meaning of Section 74. This has been laid down in the case of Bibi Aisha
and Others The Court held that under section 65 clauses (a) and (c)
secondary evidence was admissible. It is held that a case may fall both
under clauses (a) or (c) and (f) in which case secondary evidence would be
admissible.

Referential Case Law—

1. Arjun Panditrao Vs Kailash Kushanrao and Ors.