JUDGMENT
N.V. Ramana, J.
1. This C.R.P. is directed against the order dated 5-1-2004, passed by the Principal Junior Civil Judge, West and South, Ranga Reddy District, dismissing the application I.A. No. 2840 of 2003, filed by the petitioners in O.S. No. 932 of 2002, for calling the document, namely carbon copy of the Memorandum of Settlement Deed lying with the Mandal Revenue Officer, Serilingampally, Ranga Reddy District.
2. The case of the petitioner, who is one of the defendants in the suit is that they are in peaceful possession and enjoyment of the suit schedule property. According to them, the suit schedule property belongs to one Anantha Ram, who died leaving behind him, his wife Sattemma as legal heir. Subsequently, Sattemma died. Anantha Ram and Sattemma died childless. Anantha Ram is having one brother and sister. After the death of Anantha Ram and Sattemma, the property devolved upon their legal representatives. There was a settlement among the legal heirs, and a Memorandum of Settlement Deed was executed on 18-12-1993, and a carbon copy thereof was filed before the Mandal Revenue Officer, Serilingampally, Ranga Reddy District. According to the petitioners, since the date of execution of the Memorandum of Settlement Deed, they have become the absolute owners of the suit schedule property, and the said Memorandum of Settlement Deed is necessary for adjudicating the matter. Stating so, they filed the above I.A. to call for the copy of the Memorandum of Settlement Deed, which is lying with the Mandal Revenue Officer, Serilingampally, Ranga Reddy District. On the other hand, the respondents, who are the plaintiffs in the suit, filed counter stating that the Mandal Revenue Officer, Serilingampally, Ranga Reddy Duistrict, issued a Certificate stating that the carbon copy of the Memorandum of Settlement is lying with him. It was contended that the carbon copy cannot be marked in evidence, and as such, there is no necessity for calling for the same for adjudicating the matter.
3. The Court below, considering the rival contentions, held that when the original is not lying with the Mandal Revenue Officer, the carbon copy, even if called for, cannot be marked in evidence, and holding so, dismissed the I.A.
4. Heard the learned counsel for the petitioner-defendants and the learned counsel for the respondents-plaintiffs. The very same contentions as were raised before the Court below, were urged. I have also gone through the impugned order and the material on record.
5. The petitioner-defendants have not mentioned anything in the affidavit filed in support of the I.A. whether the original Memorandum of Settlement Deed is lying with the plaintiffs or is in possession of any other person. They have not even stated whether they have taken any steps for summoning the document. Under Section 66 of the Indian Evidence Act, 1872 (for short ‘the Evidence Act) certain steps are required to be taken for summoning a document for marking in evidence. In the absence of any steps having been taken by the petitioners, as are required to be taken under Section 66 of the Evidence Act, the question that arises for consideration in this C.R.P. is whether the carbon copy of the Memorandum of Settlement Deed, which is lying with the Mandal Revenue Officer, Serilingampally, Ranga Reddy District, can be summoned and marked as secondary evidence in the suit?
6. To consider this question, a reference to some of the relevant provisions of the Evidence Act, be made. Chapter V of the Evidence Act, deals with documentary evidence. Under Section 61 of the Evidence Act, the contents of the documents may be proved either by primary or by secondary evidence. What is primary and what is secondary is explained in Sections 62 and 63 of the Evidence Act. Section 64 of the Evidence Act relates to proof of documents by primary evidence. The document must be proved by primary evidence except in cases falling under Sections 65 and 66 of the Evidence Act. Section 65 of the Evidence Act deals with cases in which secondary evidence relating to documents may be given. The said section reads:
S. 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 or, 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 India, to be given in evidence;
(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), certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (e) or (f), 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.
7. A plain reading of the above provision would make it clear that principle that as long as the original exists and is available, it being the best evidence, must be produced, is engrafted in the Section. The secondary evidence is admissible only in the absence of primary evidence. The Section also provides for an alternative method of proving the contents of a document, which for various reasons, cannot be produced in evidence. Where original document is in existence, but not produced, secondary evidence by production of copies is not admissible. The Section has been designed to provide protection to persons who, in spite of their best efforts, are unable to, for the circumstances beyond their control, to place before the Court primary evidence of a document as required by law. Secondary evidence should not be allowed unless the circumstances so justify under the provisions of the Evidence Act. Further, the use of exhibit as secondary evidence is question of procedure. !
8. Though the Section does not refer to the case where mere secondary evidence of the document is not tendered, but if the document is to be admitted in secondary evidence, the facts thereof have to be proved. The certified copy of the original also can treated as secondary evidence. But the contents of the documents sought to be marked as secondary evidence cannot be admitted in evidence without production of the original document. Under no circumstances can secondary evidence be admitted as a substitute for inadmissible primary evidence.
9. Section 66 of the Evidence Act provides for the rules as to notice to produce, and it reads thus:
S. 66. Rules as to notice to produce. – Secondary evidence of the contents of the documents referred to in section 65, clause (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is or to his attorney or pleader, such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case;
Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:-
(1) when the document to be proved is itself a notice;
(2) when, from the nature of the case, the adverse party must know that he will be required to produce it;
(3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;
(4) when the adverse party or his agent has the original in Court;
(5) when the adverse party or his agent has admitted the loss of the document;
(6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.
10. From a reading of the aforementioned provision, it is clear that secondary evidence of the contents of the documents referred to in Section 65(a) of the Evidence Act, shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his attorney or pleader, such notice to produce it as is prescribed by law.
11. Thus, from a bare perusal of the provisions of Sections 61 to 66, it becomes clear that the question of permitting secondary evidence as primary evidence does not arise.
12. Under what circumstances the secondary evidence relating to document must be proved by primary evidence is an exception to the cases falling under Sections 65 and 66 of the Evidence Act. The person seeking to produce secondary evidence relating to a document can do so only when the document is not in his possession, and this is explained in Section 65 of the Evidence Act, particularly in Section 65(a) of the Evidence Act, which provides that when the original is shown or appears to be in 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 of the Evidence Act, such person does not produce it. Though under Section 66 of the Evidence Act, the petitioners were required to issue notice to the person in whose possession the document is, they have not mentioned in whose possession the document is, nor issued any notice to the person from whom they are seeking to summon the document. To enable a person take recourse to the provisions of Sections 65 and 66 of the Evidence Act, it is necessary for him to establish that the document sought to be summoned was executed and that the said document is not with him, but is in possession of the person against whom the application is made to be produced for proving against him.
13. Another ancillary question that arises for consideration is whether notice is required to be issued to the person in whose possession the document is, to produce the document. Merely because the person in whose possession the required document is, is himself or herself a party to the suit, the same cannot be a ground for not giving notice to produce, and where there is nothing on record to show, then it would be ineffective. But if it is established by the petitioners that the original document is lost or is destroyed or deliberately held by the party against whom they sought to be used, then in respect of those documents, secondary evidence can be tendered, namely the certified copies of the document available in the revenue records, unless those are the documents defined under Section 74 of the Act. The other circumstance where notice to the party is not required is by the very nature of the case, namely the party must be held to be knowing that he would be required to produce it even without an application. It is not the case of the petitioner-defendants that they issued notice to the respondents-plaintiffs to produce the original of the document sought to be summoned from the Mandal Revenue Officer, Serilingampally. Mere making of application under Section 65 of the Evidence Act without following the procedure contemplated under Section 66 of the Evidence Act, is premature.
14. In the above view of the matter, no interference is called with the impugned order, The C.R.P., is therefore, dismissed. The petitioners, however, are at liberty to make application, if so advised for taking out notice to the respondents-plaintiffs to produce the document, and if any such application is made, the trial Court shall consider and dispose of the same on its own merits. No costs.