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Cases in which documents must not be proved by Primary Evidence

1. When the original is in the possession or power —

(a) Of the person against whom the document is sought to be proved; or

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(b) Of any person out of reach of, or not subject to the process of the Court; or

(c) Of any person legally bound to produce it, and when, after notice, such person does not produce it.

2. 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.

3. When the original has been destroyed or lost.

To prove the loss of a document, some evidence of diligent search is required. Therefore, if a person cannot show proof of the search of the original, he will not be allowed to produce copies as evidence. However, in a case decided by the Privy Council, when a promissory note filed along with a plaint disappeared from the files of the Court, it was held that the plaintiff was entitled to give secondary evidence of the document. He was not bound to show how the loss or disappearance arose or who removed it from the file. (Tulsi Ram v. Ram Saran, 27 B.L.R. 777 PC.)

4. When the party offering evidence of the contents cannot (for no fault or neglect of his) produce the original in reasonable time.

5. When the original is of such a nature as not to be easily movable (e.g. a writing on a wall, inscription on tombstones, trees, etc.). Secondary evidence is admissible in such cases because of the gross inconvenience and impracticability of producing the original.

[In cases, 1, 3, 4 and 5, any secondary evidence of the contents of the document is admissible.

In case 2, the written admission of such a document is admissible.]

6. When the original is a public document.

This clause protects the originals of public records from the danger of constant production in Court.

7. When the original is a document of which a certified copy is permitted to be given in evidence.

Where, however, an original document cannot be given in evidence due to a statutory prohibition (as for instance, an income-tax return), its certified copy also cannot be admitted in evidence.

8. When the fact to be proved is the general result or numerous accounts or other documents which cannot conveniently be examined in Court. In such a case, the evidence of any person skilled in the examination of such documents, and who has examined them, is admissible.

This clause is meant for saving public time. Where the fact to be proved is the general result of the examination of numerous documents, and not the contents of each particular document, and the documents are such as cannot be conveniently examined in the Court, evidence may be given as to the general result of the documents by a person who has examined them and who is skilled in the examination of such documents, although such documents may not be public documents within the meaning of this section.

It will thus be seen that S. 65 enumerates the eight exceptional cases in which secondary evidence is admissible.

It may be noted that, under S. 65, the word ‘document’ means a document admissible in evidence. If a document is inadmissible in consequence of not being registered, or not being properly stamped, or for any other reason, secondary evidence cannot be given of its existence. S. 65 presupposes that but for one or other of the barriers stated therein, the document would have been capable of proving its contents under Ss. 62 and 64.

Secondary evidence can only be given when the primary evidence or the document itself is admissible. When certain evidence is inadmissible, no secondary evidence is admissible. An unstamped or an insufficiently stamped pronote is not admissible in evidence; see S. 35 of the Indian Stamp Act. Therefore, a copy of such a document is also inadmissible. (Raja of Bobbili v. Inuganti, 26 I. A. 262; Hiralal v. Shankar, 45 Bom. 1170)

In other words, secondary evidence can only be given when the primary evidence or the document itself is admissible. Secondary evidence cannot be given of a document when the original is found to be inadmissible. If a deed of gift is inadmissible in evidence for want of registration, no secondary evidence of the deed can be given in a suit to recover the gifted property.

Several cases have laid down that if a copy of a document is admitted in evidence in the Court of the first instance without any objection, no objection as to its admissibility can be taken in the Appeal Court. The question of proof of a document is a question of procedure, and cannot be waived. However, a question of relevancy of a document is a question of law and can be raised at the appellate stage also.

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