1998 (2) TMI 608 - HC - Indian Laws

Summary

Issues:
1. Entitlement to produce secondary evidence under Section 65 of the Evidence Act.
2. Requirement of notice under Section 65 of the Evidence Act for producing secondary evidence.
3. Obligation under Section 66 of the Evidence Act regarding secondary evidence.
4. Definition of secondary evidence under Section 63 of the Evidence Act.

Analysis:
The judgment pertains to a revision petition under Section 115 of the Code of Civil Procedure, challenging an order permitting the plaintiff to cross-examine a witness with a copy of an assessment order under Section 65 of the Evidence Act. The petitioner argued that the plaintiff was not entitled to produce secondary evidence without a notice to produce the original document. However, the respondent contended that since the document related to the witness, who was supposed to have the original, the lower court's order was valid.

The court analyzed the provisions of the Evidence Act regarding secondary evidence. It noted that under Section 65, secondary evidence can be given when the original is in the possession of the person against whom the document is sought to be proved. In this case, as the document was related to the witness, it was presumed to be in his possession, allowing the plaintiff to produce secondary evidence. However, the court highlighted the requirement under Section 66 that notice must be given to the party in possession of the original document before producing secondary evidence. Since no such notice was issued in this case, the court found the lower court's decision flawed.

Furthermore, the court emphasized the need to establish that the document in question falls within the definition of secondary evidence as per Section 63 of the Evidence Act. It pointed out that there was no evidence to show that the photostat copy was made from the original assessment order. Due to these legal deficiencies, the court concluded that the lower court had erred in permitting the production of the photostat copy as secondary evidence.

Consequently, the court allowed the revision petition, setting aside the lower court's order dated 1-12-1997. Each party was directed to bear their own costs in the matter.