Case Note & Summary
The appeal arose from a suit for recovery of money decreed by the trial court. The plaintiff alleged that the defendants, representing themselves as owners of certain sites, agreed to sell them for Rs.4,50,000 and received an advance of Rs.1,50,000 on 01.03.1993, executing an agreement of sale dated 27.02.1993. Since defendants No.4 and 6 were absent, defendant No.5 took the original agreement to obtain their signatures, giving a photocopy to the plaintiff, but never returned the original. The plaintiff issued a legal notice and filed suit for recovery when the defendants failed to execute the sale deed or refund the advance. The defendants denied executing the agreement or receiving money. The trial court, after framing issues, examined the plaintiff as PW-1 and defendant No.4 as DW-1. It marked documents Exs.P1 to P14, including photocopy of the agreement (Ex.P1/P14) and letters from defendant No.5 (Exs.P4-7). DW-1 admitted the signatures of defendants No.1, 3 and 5 on Ex.P14. The trial court decreed the suit against defendants No.1-3 and 5 for Rs.1,50,000 with 10% interest per annum, dismissing a counterclaim by defendant No.6. In appeal, the defendants challenged the admissibility of the photocopy agreement, arguing no foundation was laid for secondary evidence and that the suit was barred by limitation. The High Court held that the plaintiff had explained in the plaint itself the reason for non-production of the original, thus satisfying the foundation requirement under Section 65 of the Evidence Act. It discussed Sections 3, 59, 62, 63, 65 of the Evidence Act and Order XIII Rules 3 and 6 CPC, concluding that secondary evidence is admissible when foundational facts are pleaded, and the admission of signatures by DW-1 corroborated the document. The argument on limitation was not substantiated by any material on record. Consequently, the appeal was dismissed, affirming the trial court's decree.
Headnote
A) Evidence Law - Secondary Evidence - Admissibility of Photocopy - Indian Evidence Act, 1872, Sections 63, 65 - Where original document is unavailable because it was taken by a party, the photocopy may be admitted as secondary evidence if the party laying it explains the reason for non-production in the plaint itself, thereby establishing the foundational facts required under Section 65. Held that the plaintiff explained that defendant No.5 took the original to obtain signatures of absent defendants and never returned it, justifying reliance on the photocopy (Paras 15-28). B) Evidence Law - Foundation for Secondary Evidence - Indian Evidence Act, 1872, Section 65 - The foundation for leading secondary evidence need not necessarily be laid during the course of evidence; it suffices if the pleadings disclose the circumstances justifying reliance on secondary evidence. The plaintiff averred in the plaint the reason for non-availability of the original, and the court found this sufficient (Paras 15, 28). C) Civil Procedure - Rejection of Documents - Order XIII Rules 3 and 6, Code of Civil Procedure, 1908 - The trial court has discretion to reject irrelevant or inadmissible documents, but where a document is found to be relevant and admissible as secondary evidence after satisfying the conditions under Section 65, the document cannot be rejected merely because it is a photocopy (Paras 25-27). D) Contract Law - Breach of Agreement to Sell - Recovery of Advance - Where defendant No.5 admitted in letters the receipt of advance and promised to either execute sale deed or refund money, and DW-1 admitted signatures of defendants on the agreement (Ex.P14), the trial court rightly decreed the suit for recovery of Rs.1,50,000 with 10% interest (Paras 6, 14). E) Limitation - Suit for Recovery of Money - Limitation Act, 1963 - Argument that suit was barred by limitation was not raised as a specific issue before the trial court, and no material was placed to show that the suit filed on 25.03.1999 was beyond limitation (Para 11).
Issue of Consideration
Whether the trial court erred in decreeing the suit for recovery of money based on photocopy of agreement of sale without proper foundation for secondary evidence, and whether the suit was barred by limitation.
Final Decision
Appeal dismissed; judgment and decree of trial court upheld. The High Court held that the plaintiff had explained the non-availability of original in plaint itself, thus foundation for secondary evidence was laid, and DW-1's admission of signatures corroborated the photocopy. Hence, the decree for Rs.1,50,000 with 10% interest was justified.
Law Points
- secondary evidence
- photocopy admissibility
- foundation for secondary evidence
- Section 65 Indian Evidence Act
- Order XIII Rule 3 CPC
- burden of proof
- cross-examination admission
