RAJENDRA PRASAD BANSAL Vs. MUKESH KUMAR JAIN

JUDGEMENT

(1.) IN this petition filed under Article 227 of the Constitution, the petitioner has challenged the order dated 07/05/2012, whereby an application under Section 65 of the Evidence Act preferred by defendant was allowed by the Court below. In the said application, the defendant stated that the matter before the trial Court was earlier listed on 20/03/2012. The defendant appeared before the Court below for his cross-examination. However, the cross-examination could not take place and the matter was adjourned. The defendant was carrying original sale agreement dated 31/10/2001 with him, which was lost by him somewhere. A report in this regard was lodged in police station Inderganj. On the strength of this, it was stated before the Court below that in view of Section 63 read with Section 65(c) of the Evidence Act, the said document may be accepted in evidence. The Court below after hearing the parties, allowed the said application by impugned order. The said order is challenged by the petitioner/plaintiff on following grounds:- (1) As per Section 63 of the Evidence Act, a photocopy can be relied upon only when it is compared with original. (2) The document in question is neither compared with the original nor there exists any such proof to believe it was a photocopy of its original. (3) All other documents are available with the defendant and only one document i.e. sale agreement is allegedly lost, which is unbelievable.

(2.) SHRI Rajiv Jain, learned counsel for the petitioner relied on the relevant provisions of the Evidence Act and also the recent order passed by this Court in W.P.No. 09/2012 (I) [Ganesh Vs. Smt. Basanti Mahore and others] decided on 22/06/2012.

(3.) SECTION 63(2) defines, secondary evidence which includes even photocopies which are made from original by mechanical process, however, to ensure the accuracy of the copy, the requirement is that it should be compared with original. Section 63(3) makes it clear that copies which are made from or compared with the original can be treated as Secondary Evidence. Section 65 (c) makes it clear that loss of original document can be a ground for admitting secondary evidence provided the original document is not destroyed or lost because of default or negligence of the person, who is producing the photocopy.