2010 (4) TMI 1224 - HC - Indian Laws

Summary

Issues Involved:

1. Admissibility of secondary evidence u/s 65 of the Indian Evidence Act, 1872.
2. Competence of a Notary to attest a copy of a document.
3. Legal requirements for proving loss of the original document.

Summary:

Admissibility of Secondary Evidence u/s 65 of the Indian Evidence Act, 1872:

The plaintiff filed a suit for specific performance of an agreement of sale dated 05.02.1986 and sought to admit a notarized copy of the agreement as secondary evidence, claiming the original was lost while shifting house. The trial court allowed this petition, finding that the plaintiff had shown prima facie that the original was lost beyond recovery. The defendants contested this, arguing that the plaintiff did not provide sufficient details on how the original was lost and that the photocopy could not be admitted as secondary evidence. The court held that secondary evidence is admissible when the original is lost, destroyed, or otherwise unavailable, provided diligent search and efforts to locate the original have been made.

Competence of a Notary to Attest a Copy of a Document:

The defendants argued that a Notary is not empowered to attest a true copy of a document, only to verify, authenticate, certify, or attest the execution of any instrument u/s 8(1)(a) of the Notaries Act, 1952. The court noted that whether a Notary is competent to attest a copy based on the original is a matter to be decided after adducing evidence, not at this preliminary stage. The court emphasized that a bare statement on affidavit regarding the loss of the document is sufficient at this stage to permit secondary evidence.

Legal Requirements for Proving Loss of the Original Document:

The court highlighted that to admit secondary evidence, it is crucial to show that the original existed and was lost despite diligent search. The plaintiff provided a prima facie explanation for the loss of the original document. The court referenced several precedents, noting that secondary evidence can be admitted if the original is lost and reasonable efforts to locate it have been exhausted. The court found that the plaintiff's affidavit and the notarized copy met the initial threshold for admitting secondary evidence.

Conclusion:

The court dismissed the Civil Revision Petition, upholding the trial court's decision to allow the notarized copy of the agreement of sale as secondary evidence. The court found no error in law or procedure in the trial court's order, emphasizing that the admissibility and relevance of the secondary evidence would be further scrutinized during the trial.