Telangana High Court
Oriental Insurance Company Ltd., vs Bharat Heavy Electricals Ltd., on 21 August, 2024
THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI
C.R.P.NOS. 1929 and 1932 of 2024
COMMON ORDER:
These two Civil Revision Petitions have been filed against
the common and consolidated order passed in I.A.Nos.1498 and
1499 of 2023 in O.S.No.79 of 2018, dated 22.02.2024, on the
file of Principal District Judge, Sangareddy District.
2. Brief facts leading to the filing of the present Civil
Revision Petitions are that the petitioner herein is the defendant
in the suit filed by the respondent plaintiff for recovery of a sum
of Rs.5,70,82,068/-, which includes the principal amount of
Rs.1,67,86,375/- and interest thereon @ 18% p.a., from the
date of registration of claim i.e., 25.11.2004 till the date of filing
of suit which amounted to Rs.4,02,95,693/-. The plaintiff has
filed two I.As., one under Section 65-B of Indian Evidence Act
and the other under Section 65-c of Indian Evidence Act r/w
151 Civil Procedure Code respectively praying the Court to
admit the documents which are mentioned in the petition and
the Chief affidavit and to permit to mark them as exhibits in
O.S.No.79 of 2018. The petitioner/defendant has objected to the
same stating that the plaintiff has not proved or stated that the
subject documents have been lost forever and therefore, the
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CRP.Nos. 1929 & 1932 of 2024
secondary evidence cannot be admitted. However, the trial
Court has allowed the petitions filed by the plaintiff and
therefore, defendant has filed the present Civil Revision
Petitions challenging the said orders.
3. It is submitted that in respect of the petition filed
under Section 65-B of the Indian Evidence Act, the trial Court
has permitted the plaintiff to mark certain documents on behalf
of plaintiff under Section 65-B of Indian Evidence Act on the
ground that the said documents are electronic printouts,
computer outputs and the same were obtained from the
computers maintained by the plaintiff company wherein the
said information was stored, though the ingredients of Section
65-B of Indian Evidence Act are lacking in the said case. It is
submitted that the trial Court failed to see that the documents
which are sought to be marked are Xerox copies of the printouts
obtained from the computer and the original documents were
not produced even at the time of filing of suit. It is submitted
that the trial Court has failed to see that the respondent
company has not submitted the certificate under Section 65-B
of Indian Evidence Act certifying that the printouts are obtained
from the same computer which was used regularly to store the
TMD,J
CRP.Nos. 1929 & 1932 of 2024
information during the relevant time by the person having
lawful control over the use of such computer.
4. In respect of the petition filed under Section 65-c of
Indian Evidence Act, learned counsel for the petitioner
submitted that the trial Court permitted the plaintiff to mark
the Xerox copies as exhibits even though the respondent did not
explain as to how the original documents are lost and the
reasons for marking the Xerox copies as exhibits by considering
them as secondary evidence, though the ingredients of Section
65-c of Indian Evidence Act are lacking in the present case. It is
submitted that the trial Court also failed to see that the
contents of the affidavit filed in support of the petition merely
stated that the documents could not be traced out as they were
sixteen years old, but not that they were lost. Therefore,
according to him, there existed no valid ground to allow the
petition. It is submitted that the trial Court ought to have
observed that Rule 113(7) of the Civil Rules of Practice does not
permit marking of Xerox copies in the absence of originals
unless the conditions mentioned in Section 65(c) are fulfilled.
5. Learned counsel for the petitioner, while reiterating
the above submissions, also relied upon the following
judgments:
TMD,J
CRP.Nos. 1929 & 1932 of 2024
1. Benga Behera and Another Vs. Braja Kishore Nanda
and Others 1;
2. Sital Das Vs. Sant Ram and Others 2;
3. B.Balachandra Rai Vs. Indian Telephone Industries
Limited 3;
4. Rajasthan Golden Transport Company Vs. Lrs.Of
Amritlal 4;
5. K.P.Krishnakumar Vs. Smt.Radhalakshmi Amma 5.
6. Learned counsel for the respondent, on the other
hand, submitted that subsequent to the orders passed by the
trial Court, the plaintiff has furnished the certificate under
Section 65-B of Indian Evidence Act and therefore, the objection
of the respondent with regard to the marking of the said
documents is not sustainable.
7. In respect of the documents which are marked
under Section 65-c of the Indian Evidence Act, the learned
counsel submitted that in the petition filed before the trial
Court, it was clearly mentioned that the documents were not
traceable due to lapse of time and therefore, the ingredients of
1 AIR 2007 SC 1975
2 AIR 1954 SC 606
3 2003 (5) KARLJ 79
4 AIR 1998 RAJ 153
5 2004 (4) KARLJ 391
TMD,J
CRP.Nos. 1929 & 1932 of 2024
Section 65-c of the Indian Evidence Act are attracted and the
trial Court has correctly allowed marking of the said documents.
It is further submitted that mere marking of the documents is
not equivalent to the proof of documents and the respondent
can take the objection to the admission of documents at the
time of examination of the parties and therefore, there was no
prejudice caused to the defendant by marking of the
documents. She further submitted that the documents which
are sought to be filed and marked are all correspondence
between the plaintiff and the defendant and therefore,
defendant cannot have any objection to the marking of such
documents. In support of her contentions, she also placed
reliance upon the following judgments:
1. Jupudi Prakash Vs. The State of Andhra Pradesh 6;
2. Krishnapatnam Port Company Ltd Vs. Cargill India
Pvt Ltd 7;
3. Jagmail Singh and Another Vs. Karamjit Singh and
Others 8;
8 (2020) 5 SCC 178
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CRP.Nos. 1929 & 1932 of 2024
4. Prem Chandra Jain (Deceased) rep. by Lr's Shri
Bharat Bhushan Jain, Advocate and Others Vs. Sri Ram
(Deceased) rep. by Lr's Shri Sunil Kumar Arora and Others 9;
5. Narmada Estates Pvt. Ltd. Vs. State of Maharashtra
and Others 10;
6. Rakesh Mohindra Vs. Anita Beri and Others 11.
8. Having regard to the rival contentions and the
material on record, this Court would first like to consider the
legal position and the judicial precedents on the issue for
adjudication of the issue. For ready reference the provisions of
Section 65(c) of the Indian Evidence Act is reproduced
hereunder:
"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".
9. On a literal reading of the above provision, this
Court finds that for admission of secondary evidence under
Section 65-c of Indian Evidence Act, the primary condition to be
satisfied is that the original documents are not available or lost.
9 2009 (113) DRJ 617
10 2017 SCC Online Bom 7499
11 (2016) 16 SCC 483
TMD,J
CRP.Nos. 1929 & 1932 of 2024
10. Let us therefore now consider the precedents relied
upon the petitioner on the issue. In the case of Benga Behera
and Another (cited supra) the Hon'ble Supreme Court has
observed that "where no information was lodged about the
missing of the documents before any authority, the loss of the
original document was not satisfactorily proved. It was held that
a document, upon which a title is based, is required to be
proved by primary evidence and secondary evidence may be
given under Section 65(c) of Indian Evidence Act and therefore,
it was obligatory on the part of the respondents to establish, on
the part of the party seeking to file to establish, the loss of the
original document, beyond all reasonable doubt".
11. In the case of Sital Das (cited supra), it was held
that "where no foundation was laid for reception of secondary
evidence under Section 65 of Indian Evidence Act, no copy
produced, can be regarded as secondary evidence within the
meaning of Section 63".
12. In the case of B.Balachandra Rai (cited supra), it
was held that "neither are the originals nor certified copies of
the same are produced and nor are the contents of the same
proved as required in law and mere production of Xerox copies
TMD,J
CRP.Nos. 1929 & 1932 of 2024
do not amount to proof of the same unless foundation is laid for
adducing secondary evidence as the substantive provisions of
the Indian Evidence Act are applicable to the enquiry
proceedings".
13. In the case of Rajasthan Golden Transport
Company (cited supra), it was held that "before according
permission to produce secondary evidence, the Court is required
to satisfy itself whether the document sought to be produced
falls within the definition of secondary evidence as defined in
Section 63 of the Indian Evidence Act and where the document
in question appears to be a Photostat copy of its original
assessment order, there should be some evidence that this copy
was made from its original by the Photostat machine and where
no such material is available on the file of the case, the same
cannot be admitted as secondary evidence".
14. In the case of K.P.Krishnakumar (cited supra), it
was held that "a 'true copy' of a document will not be admissible
under Section 63 unless it is shown that it has been made from
or compared with the original. Further, there must be sufficient
proof of a search for the original to render the secondary
evidence admissible and it must be established that the party
TMD,J
CRP.Nos. 1929 & 1932 of 2024
has exhausted all resources and means in search of the
document which was available to them". Therefore, the
requirement of Section 65-c of the Indian Evidence Act is that
the petitioner not only must aver that there has been a search
for document, but also that it has been lost or is not traceable.
15. In the application filed by the petitioner under
Section 65(c) of the Indian Evidence Act, it was stated that the
copies which was filed were pertaining to sixteen years old and
that the same were not available in the office of the plaintiff
company and as such it is unable to procure the same and
produce before the Court. Therefore, it is clear that the
respondents have given the reason for non-production of the
original documents and the only presumption that can be
drawn is that the documents are not available. For the meaning
of the word 'lost', the Delhi High Court in the case of Prem
Chandra Jain (cited supra) relied upon by the learned counsel
for the respondent, the word 'lost' was held to be synonymous
with 'not traceable' or 'not available'".
16. In the other judgments relied upon by the learned
counsel for the respondent it was held that the reasons given in
the application that the documents are misplaced or lost at the
TMD,J
CRP.Nos. 1929 & 1932 of 2024
time of shifting can't be said to be false and further on the
existence of the documents, the opposition party can cross
examine the witnesses. In the case of Rakesh Mohindra (cites
supra), the Hon'ble Supreme Court has held that "mere marking
or admission of secondary evidence does not amounts to its
proof, the genuineness, correctness and that the existence of
the documents shall have to be established during the trial.
17. In the case of Jupudi Prakash (cited supra), it was
held that "under Section 65 (c) of the Indian Evidence Act, Xerox
copies can be received when the original documents have been
destroyed or lost subject to proof and relevancy". Therefore, this
Court finds that the Courts have time and again held that the
Xerox copies of the primary evidence can be accepted as
secondary evidence provided the petitioner proves that the
documents were not traceable and/or are lost. It was further
held that even if the documents are marked, are yet to be
proved during the course of trial. As pointed out in the earlier
paragraphs, the petitioner had stated the reason for filing of the
secondary evidence i.e., they are sixteen years old and are not
available in the plaintiff company. Further, it is stated across
the Bar, that these documents are the correspondence between
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CRP.Nos. 1929 & 1932 of 2024
the plaintiff and the defendant and therefore, they might be in
possession of the defendant as well.
18. In view of the above, this Court is of the opinion
that there is no prejudice caused to the petitioner in allowing
the documents to be marked subject to proof and relevancy.
Marking of the documents itself will not amount to admission of
the documents. They are only being marked as exhibits. In view
of the same, this Court does not find any merit in the Civil
Revision Petition filed against the order passed in I.A.No.1498 of
2023 in O.S.No.79 of 2018, dated 22.02.2024.
19. In case of C.R.P.No.1929 of 2024, it is submitted
that the certificate under Section 65-B of the Indian Evidence
Act has been produced before the trial Court. Therefore, the
order passed in I.A.No.1499 of 2023 needs no interference.
20. Accordingly, both the Civil Revision Petitions are
dismissed. There shall be no order as to costs.
21. Miscellaneous petitions, if any, pending in this Civil
Revision Petitions, shall stand closed.
____________________________
JUSTICE T.MADHAVI DEVI
Date: 21.08.2024
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