Malati Ghosh vs M/s. P. G. Medical Stores & Ors

Sabyasachi Bhattacharyya, J

The plaintiff in a suit for eviction has preferred the instant revisional application against an order whereby the petitioner's prayer for marking as exhibit a photocopy of a purported notice to quit, which was available in the case record as an annexure with the plaint, was refused.

The learned advocate appearing on behalf of the petitioner argues that the original notice, which was already an exhibit in the suit, was in a torn condition due to long pendency of the suit, for which the petitioner was in no way responsible. It is further submitted that under certain circumstances, Section 65 of the Indian Evidence Act, 1872 permits a photocopy to be produced as secondary evidence to prove the content of the original notice.

The learned advocate for the petitioner also relies on Section 63(2) of the Indian Evidence Act, 1872 to argue that even copies compared with copies made from the original by mechanical processes, can come in as secondary evidence, as in the present case.

It is further submitted on behalf of the petitioner that the attempt of the petitioner, by bringing the said document as an exhibit, is merely to elucidate the contents of the original notice to quit, which is already marked as an exhibit.

The learned advocate for the petitioner also relies on Section 63(3) of the said Act of 1872 for the proposition that copies made from or compared with the original can come in as exhibits in the suit.

The learned advocate appearing on behalf of the defendants/opposite parties, on the other hand, argues that Section 63 of the said Act is the governing provision to indicate what secondary evidences are. It is argued that sub-section (2) of the said Section merely contemplates copies made from the original by some mechanical processes which, in themselves, ensure the accuracy of the copies. It is additionally provided in sub-sections (2) and (3) of Section 63 of the said Act that copies compared with such copies or copies made from or compared with the original can come in as secondary evidence. However, the learned advocate argues that, in the present case, a mere photocopy could not come in as an exhibit. It is further argued that in the event the petitioner had a photocopy, it pre-supposes that the original, from which the same was taken, could also be exhibited by the petitioner, which he ought to have, but did not produce. It is also argued on behalf of the opposite parties that Section 66 of the said Act of 1872 was not complied with in the present case.

Upon hearing both sides, it is seen that the provisions of Section 66 of the said Act come into play only in case Sections 63 and 65 are satisfied. Even if Section 63 is satisfied in the present case, since the proviso (1) to Section 66 envisages a document to be proved, being itself a notice, as an exception carved out from the said Section, the same would not be a material consideration in the present case, since here not the original notice but an alleged photocopy thereof is in cosideration.]

It is seen from the provisions of sub-sections (2) and (3) of Section 63 of the said Act that copies made from or compared with the original and compared with the copies made from the original by mechanical processes, can also come within the fold of secondary evidence. The illustrations (a) and (b) to Section 63 of the Indian Evidence Act, 1872 also provide further examples of circumstances where a copy compared with a copy of a letter made by copying machine can be taken as secondary evidence, provided that the same was made from the original.

In the present case, a mere photocopy cannot ipso facto be marked as an exhibit, not being a secondary evidence itself; however, in the event the party producing such document as a secondary evidence is capable of proving that the said copy was compared with the original or with a copy made from the original by a mechanical process, Section 63, along with its illustrations, give an opportunity to the person interested in exhibiting such document to bring the document on record as evidence.

As regards other the argument of the opposite parties, that the petitioner could very well have produced the original from which the photocopy is taken, the said argument does not hold good, since the petitioner merely wants to mark as an exhibit the photocopy of the notice to quit, which is already available in the case record, being annexed to the plaint.

As such, the trial court ought to have given an opportunity to the petitioner to prove, in addition with the photocopy of the purported eviction notice, the fact that the said copy was made from or compared with the original or was made from a copy of the original.

In such view of the matter, the revisional application bearing C.O. 3187 of 2019 is disposed of on contest, thereby setting aside the impugned order and permitting the petitioner to mark the said photocopy of the purported notice to quit, which is already a part of the record as an exhibit, subject to the condition that the petitioner is also able to prove by independent evidence, either that the said photocopy was made from or compared with the original, or was compared with a copy made from the original by mechanical process or that the copy was compared with a copy made by a copying machine, in the event the copy made by the copying machine was made from the original. In the event, the petitioner can prove any of the aforementioned conditions, more specifically, stipulated in Section 63(2) (second part) and Section 63(3) as also illustration (b) to the said Section, then the photocopy of the purported notice to quit shall be marked as an exhibit by the court below. The court below shall permit the petitioner to so prove, as indicated above, the document-in-question, as expeditiously as possible, as per the roster of the court below.

There will be no order as to costs.

Photostat certified copy of this order, if applied for, will be made available to the applicant within a week from the date of putting in the requisites.