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2015 (11) TMI 1840 - SC - Indian LawsValidity of secondary evidence of the contents - whether the High Court is justified in reversing the order passed by the Trial Court allowing the Defendant- Appellant to lead secondary evidence of the contents of the documents? - Sections 34 and 38 of the Specific Relief Act, 1963 - HELD THAT:- The pre-conditions for leading secondary evidence are that such original documents could not be produced by the party relied upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the non-production of primary evidence. Unless, it is established that the original documents is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot accepted. The High Court, following the ratio decided by this Court in the case of J YASHODA VERSUS K. SHOBHA RANI [2007 (4) TMI 11 - SUPREME COURT], came to the conclusion that the Defendant failed to prove the existence and execution of the original documents and also failed to prove that he has ever handed over the original of the disclaimer letter dated 24.8.1982 to the authorities. Hence, the High Court is of the view that no case is made out for adducing the secondary evidence. It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence. At the same time, the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. It is equally well settled that neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispense with its proof, which is otherwise required to be done in accordance with law. All efforts have been taken for the purpose of leading secondary evidence. The trial court has noticed that the photocopy of the Exhibit DW-2/B came from the custody of DEO Ambala and the witness, who brought the record, has been examined as witness. In that view of the matter, there is compliance of the provisions of Section 65 of the Evidence Act. Merely because the signatures in some of the documents were not legible and visible that cannot be a ground to reject the secondary evidence. The trial court correctly appreciated the efforts taken by the Appellant for the purpose of leading secondary evidence - the impugned order passed by the High Court cannot be sustained in law. Appeal allowed - decided in favor of appellant.
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