SAYED JAMALLUDIN MUJAWAR Vs. KHATUNBI ABDUL GANI

JUDGEMENT

(1.) THIS is a revision application against the Order dated 1st September, 1999 passed in Regular Civil Suit No.62/87 by Civil Judge, Junior Division, Vasco-da-Gama. By the impugned order, the Trial Court has dismissed the applications dated 22.9.98 and 26.11.98 filed by the petitioners seeking leave to produce xerox copy of a receipt written on a stamp paper. The applications have been refused on the ground that the document is not a public document and that the trial court was unable to understand under what provision of law the petitioners are entitled to produce xerox copy of the document and that under what provisions of law the petitioners can lead evidence to the effect that the original document is lost. Notice of the revision application was issued to the respondents for final disposal of the petition at the admission stage. Inspite of service of notice on all the respondents, except respondent No.1 (c), none have appeared today when the matter is called out for hearing. As regards respondent No.1 (c) notice sent to her has been returned on account of refusal on her part to receive the same and the same is apparent from the postal remark to that effect. It is therefore apparent that the respondents are not interested in contesting this revision application.

(2.) SECTION 63 of the Evidence Act provides that secondary evidence means and includes copies made from the original by mechanical processes which in themselves insure the accuracy of the copy and copies compared with such copies. Certainly, a xerox copy of a document is issued by a mechanical process and therefore such copy would amount to secondary evidence within the meaning of section 63 of the Evidence Act.

(3.) PERUSAL of the impugned order discloses that the trial court without undertaking the exercise in the manner required under the law, by simply expressing ignorance regarding the provisions of law which empowers the party to produce secondary evidence and about the manner of proving the fact of loss of the original document, has arbitrarily rejected the applications dated 22.9.98 and 26.11.98. Apparently, therefore, the trial court has exercised its jurisdiction arbitrarily. The applications have been dismissed without application of mind. Hence the impugned order cannot be sustained and is liable to be quashed and set aside.