Case Note & Summary
The petitioners, original defendant nos. 3 to 10 in a suit for specific performance of an agreement dated 22.11.1990, challenged an order of the trial court allowing the plaintiff (respondent no.3) to lead secondary evidence by producing a photocopy of the agreement. The suit was filed by the plaintiff seeking specific performance of the agreement. The defendant nos. 3 to 10 claimed interest in the suit property under a separate agreement with the original plaintiff. After pleadings were completed, the plaintiff gave notice to defendant no.1 to produce the original agreement. No reply was filed, and the original was not produced. The plaintiff then filed an application (Exhibit 77) seeking permission to lead secondary evidence by referring to a photocopy. The defendant nos. 3 to 10 opposed, arguing that the photocopy did not contain various relevant clauses and the map referred to was missing. The trial court granted permission. The High Court, in the writ petition, examined the provisions of the Indian Evidence Act, 1872, particularly Sections 63 and 65. It held that secondary evidence, including a photocopy, is admissible under Section 65(c) when the original is not produced after notice. The court noted that the plaintiff had given notice to produce the original, and the defendant failed to comply. The objections regarding missing clauses or maps go to the weight of the evidence, not its admissibility. The court found no error in the trial court's order and dismissed the writ petition, upholding the permission to lead secondary evidence. The court also observed that the defendant nos. 3 to 10 would have the opportunity to cross-examine the plaintiff and challenge the evidentiary value of the photocopy during trial.
Headnote
A) Evidence Law - Secondary Evidence - Admissibility of Photocopy - Section 65, Indian Evidence Act, 1872 - The plaintiff sought to lead secondary evidence of an agreement by producing a photocopy after the defendant failed to produce the original despite notice. The trial court allowed the application. The High Court upheld the order, holding that when a party fails to produce the original after notice, secondary evidence is permissible under Section 65(c) of the Evidence Act. Objections regarding missing clauses or maps go to the weight of evidence, not admissibility. (Paras 2-5) B) Evidence Law - Notice to Produce - Section 65(c) Indian Evidence Act, 1872 - The court noted that the plaintiff had given notice to defendant no.1 to produce the original agreement, but no reply was filed and the original was not produced. This satisfied the condition under Section 65(c) for leading secondary evidence. The mere fact that the photocopy may be incomplete does not bar its admissibility. (Paras 2-5)
Issue of Consideration
Whether the trial court was justified in permitting the plaintiff to lead secondary evidence by way of a photocopy of the agreement dated 22.11.1990 when the original was not produced despite notice.
Final Decision
The High Court dismissed the writ petition, upholding the trial court's order allowing the plaintiff to lead secondary evidence by producing a photocopy of the agreement dated 22.11.1990.
Law Points
- Secondary evidence
- admissibility of photocopy
- notice to produce original
- Section 65 Evidence Act
- Section 63 Evidence Act
- specific performance
- agreement to sell
