PRAKASH Vs. DODDATHAYAMMA

JUDGEMENT

(1.) The petitioner has preferred this petition challenging the order passed on I.A. No. 2 filed under Sections 63 and 64 of the Evidence Act read with Section 151 of CPC requesting the Court to permit him to mark the photo copy of the sale deed dated 24.9.2005 by way of secondary evidence and admit the same in evidence in the interest of justice and equity. The said application was opposed. The trial Court has spent considerable time in considering the rival contentions, referring to the various provisions of the Evidence Act and Civil Procedure Code and ultimately dismissed the said application.

(2.) Section 61 of the Indian Evidence Act deals with proof of contents of documents. It provides that the contents of documents will be proved either by primary or by secondary evidence. Section 62 deals with primary evidence. Primary evidence means the document itself produced for the inspection of the Court. Section 63 deals with secondary evidence. The primary evidence is the best evidence. Secondary evidence, as the name implies, assumes the existence of better evidence viz., the original. As a rule, secondary evidence is not admissible until the non-production of primary evidence is satisfactorily accounted for. Section 63 of the Act mentions five kinds of secondary evidence as provided in clause (1) to (5). The fact that secondary evidence is receivable is some times stated as forming an exception to the rule which provides that the best evidence alone can be given, but it is the logical outcome of it, for, as secondary evidence may only be given when the party tendering it has proved that primary evidence is not obtainable. Then the secondary evidence becomes the best which the Court can procure and consequently satisfies the rule. Section 65 of the Act deals with cases in which secondary evidence relating to documents may be given.

(3.) The principle is that so long as the original exists and is available, it being the best evidence must be produced. If it cannot be had on account of its loss, destruction, detention by the opponent or third person, who does not produce after notice physical or legal irremovability, or any other cause, secondary evidence is admissible. The rule is only another form of expression for the idea that when you loose the higher proof, you may offer the next best in your power. The rule does not mean that men's rights are to be sacrificed and their property lost because they cannot guard against events beyond their control. It only means that so long as the higher or superior evidence is within the possession of a party or may be reached by him, he shall give no inferior proof in relation to that.