Originals

abhimanyu (Querist) 18 July 2013 This query is : Resolved
In a civil case, where proceedings have been decided to be held ex-parte, plaintiff earlier submitted photocopies of certain documents, originals of which are with the defendant. Now, how plaintiff should prove genuineness of such photocopies in EVIDENCE WITHOUT LOSS OF TIME as defendant is not appearing and otherwise also can always deny of having originals with him if forced to produce.

Experts may guide please.

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N.K.Assumi (Expert) 18 July 2013
The law is not bother with the lost of time but with the Genuine Evidence. For tendering secondary evidence, you have to first prove that the original is in the possession of your adverse party or lost etc, and you have to send Notice to the person having possession of the documents to produce the same. Only after this, secondary evidence of photocopy can be submitted in the court with certification from the authority as per the Law of Evidence, otherwise secondary evidence of photocopy documents by itself can not be admitted in the court.

R.K Nanda (Expert) 18 July 2013
file application u/s 151 of cpc in court for getting order directing defendants to file original documents in court.

Raj Kumar Makkad (Expert) 18 July 2013
Section 65 in The Indian Evidence Act, 1872
65. Cases in which secondary evidence relating to documents may be given. Secondary evidence may be given of the existence, condition or contents of a document in the following cases:--
(a) when the original is shown or appears to be in the possession or power-- of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(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 1[ India] to be given in evidence; 2[
1. Subs. by Act 3 of 1951, s. 3 and Sch., for" the States". 2. Cf. the Bankers' Books Evidence Act, 1891 (18 of 1891 ), s. 4.
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court and the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.

abhimanyu (Querist) 18 July 2013
Respected Shri R.K. Nanda has suggested to file application u/s 151 of cpc in court for getting order directing defendants to file original documents in court but in my query, it is mentioned that defendant is not appearing and otherwise also can always deny of having originals with him if forced to produce. In all probability, this will happen.

What is the solution please?

abhimanyu (Querist) 21 July 2013

In a Decision of some other Court there is a reference of such document, original of which is not available with the Plaintiff to be produced in evidence before the present Court but only a photocopy. Will certified copy of decision of that court be accepted as an evidence by this court about genuineness of copy of that document.

prabhakar singh (Expert) 21 July 2013
How can'a reference of such document' in any judgement can lead to match contents of a document proposed to be produced as secondary evidence?

Defendant is not appearing is one matter but if he is supposed to have the custody of original then prayer of summoning from him should be made no matter he denies to have the original;

or

if plaintiff admits custody of original then plaintiff needs to prove loss of original-non availability despite due diligence and search.

Unless this exercise gets completed right to lead secondary evidence can not arise.
Text of section s65 has already been put forward by Mr.Makkad.

ajay sethi (Expert) 21 July 2013
agree with prabhakar singhji

abhimanyu (Querist) 21 July 2013
In fact the document is a certificate issued by the Registrar of societies.

prabhakar singh (Expert) 21 July 2013
hELL!
APPLY FOR A FRESH CERTIFIED COPY AND FILE IT WOULD BE ADMISSIBLE.

NEXT TIME IF YOU COME WITH THESE KIND OF SUDDEN SURPRISES THEN DO NOT EXPECT ANY RESPONSE FROM ME.

prabhakar singh (Expert) 21 July 2013
I FEEL HURT abhimanyu!
IT IS SO TEASING AS I POUR HERE MY BLOOD NOT BRAIN ONLY.

abhimanyu (Querist) 21 July 2013

Thanks very much Respected Shri Prabhakar Ji.

This was enquired and the concerned office said that they do not have any system of issuing such copies. Now we will again contact them.

prabhakar singh (Expert) 21 July 2013
LET THEM ANSWER IN WRITING AND THEN PRAY COURT TO SUMMON THE ORIGINAL FROM THEM.

abhimanyu (Querist) 21 July 2013
Kindly do not get so annoyed Respected Shri Prabhakar Ji. I am really sorry. I am not aware of technicalities of courts, hence the query, which is genuine.

prabhakar singh (Expert) 21 July 2013
THE IDEA IS TO APPLY FOR A CERTIFIED COPY AND LET THEM REPORT NO CERTIFIED COPY IS PERMISSIBLE UNDER THEIR RULES GETS REPORTED
ON APPLICATION SEEKING COPY WHEREAFTER YOU SHOULD PRAY COURT TO SUMMON ORIGINAL BEING IN THEIR CUSTODY,LET COURT DEAL WHAT THEY SAY THEN FILE THE XEROX COPY OF ORIGINAL AS IT GOES PROVED YOU DO NOT OWN ORIGINAL AMD CUSTODIAN THEREOF NOT READY TO PRESENT IT IN COURT.MATTER GETS FINALIZED.

AND YOU CAN LEAD SECONDARY EVIDENCE.

abhimanyu (Querist) 21 July 2013
I am highly grateful Prabhakar Sir for suggestion please.

Originals

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