ALICE V.

MOLY
Orders in I.A.Nos.9/2020, 11/2020 and 12/2020 in O.S.No.568/2013 pending before the
Principal Sub Judge, Thrissur are under challenge in O.P.(C) No.173/2022 filed by the
plaintiff in the above suit.
2. Orders passed on the same day in
I.A.Nos.10/2020 and 13/2020 in the same suit are under challenge in O.P.(C) No.174/2022
filed by the plaintiff.
3. The crux of the dispute in O.P.(C) No.173/2022 is that while cross-examining PW3, the
brother of the parties in this case, a photo copy of an alleged agreement executed between the
petitioner and the respondent got marked as Ext.B1, when PW3 admitted, when confronted
the same.
4. It is contended by the learned counsel for the petitioner that Ext.B1 was marked in
evidence, despite strong objection raised by the learned counsel for the plaintiff. Copy of the
deposition of PW3 is produced as Ext.P4 in this case. Initially, PW1 was cross-examined and,
thereafter, he was re-examined. Then, PW3 was further cross-examined with permission of
the court. Then, photocopy of the agreement dated 23.05.2021 shown to the witness and
asked whether he had put signature in the copy of the agreement as a witness? He readily
admitted without any hesitation and accordingly the same got marked as Ext.B1. Nothing
available in the deposition of PW3 to the effect that the learned counsel for the plaintiff
opposed marking of the document or PW3 shown any hesitation to admit his signature in the
so called agreement marked as Ext.B1. During re- examination, it was suggested that Ext.B1
is an agreement to sell the property of the plaintiff. That suggestion was admitted by PW3.
When a leading question was asked as to whether PW3 did know such an agreement, PW3
answered in the negative.
5. Going by the deposition of PW3, it could be gathered that Ext.B1 was marked without any
objection, as PW3 admitted his signature in Ext.B1 as a witness to the same,
when confronting the document while cross- examining him.
6. It was thereafter, I.A.No.9/2020 was filed to set aside the order passed by marking Ext.B1.
The other side seriously opposed the contention. The court below after referring the evidence
given by the PW3 in detail and dismissed the same. Apart from that, I.A. No.11/2020 also
filed to call for the original of Ext.B1. The learned Sub Judge dismissed the said application
also, in view of the specific contention raised by the respondent in the counter filed by the
respondent stating that the original of the said agreement had been in possession of the
plaintiff/petitioner herein. At this juncture, I.A.No.12/2020 was filed with prayer to send
original of Ext.B1 document for handwriting expert. Since it was contended by the
respondent that the original itself is in possession of the plaintiff/petitioner herein, the said
application also was dismissed.
7. Here, as I have already pointed out during cross-examination of PW3, who is none other
the brother of the plaintiff as well as the defendant, a photocopy of another agreement bearing
the signature of PW3 was shown and PW3 admitted it as one executed between the plaintiff
and defendant and he put signature in the same as a witness. No objections seen raised in
marking the document and the same was marked as Ext.B1. Now, the attempt of the
petitioner is to eschew Ext.B1 from evidence. In this connection, the learned counsel for the
petitioner placed three decisions. In the decision in J. Yashoda v. K. Shobha Rani . [2007
KHC 3494] in order to enable a party to produce secondary evidence, it is necessary for the
party to prove existence and execution of the original document. Under Section 64 of the
Evidence Act, documents are to be provided by primary evidence. Section 65, however
permits secondary evidence to be given of the existence, condition or contents of documents
under the circumstances mentioned. The conditions laid down in the said Section must be
fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of
a document cannot be admitted without non production of the original being first accounted
for in such a manner as to bring it within one or other of the cases provided for in the Section.
8. I have perused the above decision. In the said case, the Apex Court considered Exts.B1 to
B8 in the above case got marked as secondary evidence. The above ratio was held when
photocopies of documents were marked without compliance of Section 65. In fact, the facts
of the case dealt in J.Yashoda's case (supra), is totally different from the facts of this case.
Here, photocopy of the document not produced by the defendant as secondary evidence. At
the time of cross-examination of PW3, who alleged to have signed in another agreement as a
witness, was confronted with the photocopy of the document and on his admission, the same
is marked as Ext.B1. Therefore, the ratio in J.Yashoda's case (supra) has no application to the
facts of this case.
9. Another decision reported in Rakesh Mohindra v. Anita Beri and Others [2015 KHC 4746]
also has been highlighted to point out that neither mere admission of a document in evidence
amounts to its proof nor mere making of an exhibit of a document dispensed with its proof,
which is otherwise required to be done in accordance with law. Party has to lay down the
factual foundation to establish the right to give secondary evidence where the
original document cannot be produced. The ratio of the decision also has no application to the
facts of this case.
10. Another decision reported in State Of Kerala v. Saidali [1999 KHC 390] also has been
placed by the learned counsel for the petitioner. In the said decision, in paragraph No.7, a
Division Bench of this Court held that when documents are marked as exhibits without
objection of a particular party, that party cannot raise the objection that the said document has
not been admitted in evidence.
11. Here also, no objections seen raised or recorded by the learned Sub Judge while marking
Ext.B1.
12. The crux of the argument mooted by the learned counsel for the petitioner is that
foundation to lay secondary evidence is necessary before adducing secondary evidence. I am
not disputing this legal position. However, the question herein are;
i)whether foundation for adducing secondary evidence to be laid for confronting copy/copies
of document/ documents while cross-examining a witness? ii) whether production of
the document /documents before the court is/are necessary with notice to the other side,
before confronting document/documents at the time of cross-examination of a witness?
13. In an early decision reported in T.M. Mohana v. V. Kannan [AIR 1984 Madras 14 = 1984
KHC 1824], the Madras High Court considered the question after referring relevant
provisions regarding production of documents under order 7, 8 and 13 of the Code of Civil
Procedure and it was held as under:
8. Thus it is seen from the provisions of O.8 R.1 (2) and (6) O.8 R.8-A (1) and (3) and O.13,
R.2 (2) C.P.C that at every stage at which the defendant is called upon to produce the
documents, an exception is always made with reference to documents produced for the cross-
examination of the plaint witnesses or the cross-examination of the witnesses of the other
party or in answer to a case set up by the plaintiff subsequent to the filing of the suit with a
view to refresh memory. In other words, the obligation to produce documents relied upon by
the defendant at the stages contemplated under 8, R.1 (2), O.8 R.8-A (1) and by both parties
under O.13 R.1 C.P.C. has been done away with in all those cases with reference to
documents produced for cross examination. That would mean that a defendant in the
suit confronting, the plaintiff's witnesses, as in this case, need not disclose the document in
the list or produce the document at an anterior point of time or even seek and obtain the leave
of Court for tendering such a document in the course of the cross examination of the witness
of the other side.
14. It is true that by way of amendment brought into the Code of Civil Procedure by Act
22/2002 came into force w.e.f. 01.07.2002, the legal position as to production of documents
before amendment was changed. But then also the procedure for confronting documents
during cross-examination of a witness is the same. In this connection, another decision
reported in Bhima Jewellery and Diamonds Pvt. Ltd. v. Sandeep Kumar [2020 (5) KLT
40] placed by the learned counsel for the petitioner also is relevant. In the said case, also this
Court in paragraph No.21 held that when the whole purpose is to contradict a witness, it
becomes unnecessary to expatiate that the element of surprise is crucial. Axiomatically, it
will be incongruous to even suggest that a document or statement used for such must be
produced earlier, since the witness certainly will then modulate his response to it by pre-
preparation. The very object of S.145 the Indian Evidence Act would be lost by it.
15. Going by the ratio in the above decisions, it is held that it is not necessary to lay
foundation for adducing secondary evidence for confronting copy/copies
of document/documents while cross-examining a witness. Similarly, it is held that production
of the document/documents in original or the copies thereof is/are not necessary before the
court while confronting document/documents at the time of cross-examination of the witness.
16. Therefore, the petitioner herein cannot strike down or eschew Ext.B1 from the evidence.
However, the legal position is not in dispute on the point that documents or copies of
documents marked by confronting the same to a witness during cross-examination shall be
subjected to other arguments regarding the nature and attending circumstances moulded in
the documents. To put it otherwise the probative value of the said documents to be decided
by the court concerned on weighing the whole matters before the court.
17. Therefore, I have no hesitation to hold that the Original Petition filed challenging
I.A.Nos.9/2020, 11/2020 and 12/2020 in O.S. No.568/2013 on the file of the Principal Sub
Judge, Thrissur is devoid of any merits as the same do not suffer from any perversity or
arbitrariness. Therefore, O.P.(C) No.173/2022 is liable to be dismissed.
18. Coming to O.P.(C) No.174/2022, orders in I.A.Nos.10/2020 and 13/2020 are under
challenge. When PW4 was examined in this case, Ext.B2 got marked in the similar way of
marking Ext.B1 during cross-examination of PW3. It was thereafter I.A.No.10/2020 was filed
to recall PW4. The other side opposed the same and the learned Sub Judge dismissed the
petition holding that PW4 was cross-examined at length and, therefore, the attempt of the
plaintiff is to fill up the lacuna in evidence on understanding the case of the defendant after
examining DW1 in this case. Accordingly,
I.A.No.13/2020 filed to re-open the evidence also was dismissed.
19. In this matter, it is relevant to note that initially PW3 was examined and PW3 admitted
Ext.B1 photocopy of another agreement as dealt in O.P.(C) No.173/2022. Thereafter, when
PW4 was examined, PW4 admitted another copy of agreement and the same got marked as
Ext.B2. The deposition of PW4 is not produced before this Court to see the nature of
evidence given by PW4. Going by the orders impugned, the learned Sub Judge observed that
the attempt of the plaintiff is to fill up the lacuna in evidence by recalling PW4, after
examination of DW1.
20. Having noticed the entire facts of the case, in the context of events narrated, I am of the
view that the orders impugned in this Original Petition also do not suffer from any perversity
or arbitrariness to have interference by exercising the power of superintendence under Article
227 of the Constitution of India. For the said reasons, this Original Petition also must fail. It
is made clear that the probative value of Ext.B2 is similar to Ext.B1 as I have already
referred. In the result, O.P.(C) Nos.173 and 174 of 2022 stand dismissed, without being
admitted. Sd/- A.BADHARUDEEN, JUDGE. APPENDIX OF OP(C) 173/2022
PETITIONER'S EXHIBITS: EXHIBIT P1 A TRUE COPY OF PLAINT IN O.S.NO.
568/2013 ON THE FILE OF THE COURT OF PRINCIPAL SUB JUDGE, THRISSUR.
EXHIBIT P2 A TRUE COPY OF WRITTEN STATEMENT IN O.S.NO.568/2013 ON THE
FILE OF THE COURT OF PRINCIPAL SUB JUDGE, THRISSUR. EXHIBIT P3 A TRUE
COPY OF EXT.B1 MARKED IN THE COURT BELOW. EXHIBIT P4 A TRUE COPY OF
THE DEPOSITION OF PW3. EXHIBIT P5 A TRUE COPY OF OBJECTION IN
I.A.9/20 IN O.S. NO.568/2013 ON THE FILE OF THE COURT OF PRINCIPAL SUB
JUDGE, THRISSUR. EXHIBIT P6 A TRUE COPY OF OBJECTION IN I.A.9/20 IN
O.S.NO.568/2013 ON THE FILE OF THE COURT OF PRINCIPAL SUB JUDGE,
THRISSUR. EXHIBIT P7 A TRUE COPY OF ORDER DATED 14.12.2021
DISMISSING I.A.9/20 IN O.S.NO.568/2013 ON THE FILE OF THE COURT OF
PRINCIPAL SUB JUDGE, THRISSUR. EXHIBIT P8 A TRUE COPY OF I.A.11/20 IN
O.S.NO. 568/2013 ON THE FILE OF THE COURT OF PRINCIPAL SUB JUDGE,
THRISSUR. EXHIBIT P9 A TRUE COPY OF OBJECTION IN I.A.11/20 IN O.S
NO.568/2013 ON THE FILE OF THE COURT OF PRINCIPAL SUB JUDGE, THRISSUR.
EXHIBIT P10 A TRUE COPY OF ORDER DATED 14.12.2021 IN I.A 11/2020 IN O.S
NO.568/2013 ON THE FILE OF THE COURT OF PRINCIPAL SUB JUDGE, THRISSUR.
EXHIBIT P11 A TRUE COPY OF I.A.NO.12/2020 IN O.S. NO.568/2013 ON THE FILE
OF THE COURT OF PRINCIPAL SUB JUDGE, THRISSUR. EXHIBIT P12 A TRUE
COPY OF OBJECTION IN I.A.NO. 12/2020 IN O.S.NO.568/2013 ON THE FILE OF THE
COURT OF PRINCIPAL SUB JUDGE, THRISSUR. EXHIBIT P13 A TRUE COPY OF
ORDER DATED 14.12.2021 IN I.A. NO.12/2020 IN O.S.NO.568/2013 ON THE FILE OF
THE COURT OF PRINCIPAL SUB JUDGE, THRISSUR. APPENDIX OF OP(C)
174/2022 PETITIONER'S EXHIBITS: EXHIBIT P1 A TRUE COPY OF PLANT IN
O.S.NO. 568/2013 ON THE FILE OF THE COURT OF PRINCIPAL SUB JUDGE,
THRISSUR. EXHIBIT P2 A TRUE COPY OF WRITTEN STATEMENT IN
O.S.NO.568/2013 ON THE FILE OF THE COURT OF PRINCIPAL SUB JUDGE,
THRISSUR. EXHIBIT P3 A TRUE COPY OF EXT B2 MARKED IN THE COURT
BELOW. EXHIBIT P4 A TRUE COPY OF I.A.10/20 IN O.S.NO. 568/2013 ON THE
FILE OF THE COURT OF PRINCIPAL SUB JUDGE, THRISSUR. EXHIBIT P5 A TRUE
COPY OF OBJECTION IN I.A.10/20 IN O.S.NO.568/2013 ON THE FILE OF THE
COURT OF PRINCIPAL SUB JUDGE, THRISSUR. EXHIBIT P6 A TRUE COPY OF
ORDER DATED 14.12.2021 IN
I.A.10/20 IN O.S.NO.568/2013 ON THE FILE OF THE COURT OF PRINCIPAL SUB
JUDGE, THRISSUR. EXHIBIT P7 A TRUE COPY I.A 13/20 IN O.S.NO. 568/2013 ON
THE FILE OF THE COURT OF PRINCIPAL SUB JUDGE, THRISSUR. EXHIBIT P8 A
TRUE COPY OF ORDER DATED 14.12.2021 IN
I.A 13/2020 IN O.S.NO.568/29013 ON THE FILE OF THE COURT OF PRINCIPAL SUB
JUDGE, THRISSUR. EXHIBIT P9 A TRUE COPY OF OBJECTION IN I.A.13/20 IN
O.S.NO.568/2013 ON THE FILE OF THE COURT OF PRINCIPAL SUB JUDGE,
THRISSUR. EXHIBIT P10 A TRUE COPY OF DEPOSITION OF PW4.
An Analysis of the Provisions given under the Indian Evidence Act, 1872 for the
Documentary Evidence from section 61 to 73A

The facts of a particular document can be proved via two methods, one is the oral
evidence, and the other is the documentary evidence. Chapter 4 of the Indian
Evidence Act Deals with Oral Evidence (sections 59 and 60) and Chapter 5 is the
documentary Evidence (Sections 61 to 90 A). This section deals with how the
contents given in the document will be proven.

I. What is Documentary Evidence?

The word document has been defined under section 3 of the Indian Evidence Act.
Any document which is given for the assessment of the court also it is pertinent to
note that documentary evidence is superior to oral pieces of evidence, especially in
the area of trustworthiness. This principle comes from the doctrine of vox Audita
Perit, literra Scripta Manet which means spoken words vanish whereas only the
written words remain. This means when there is evidence in front of the court, one is
the oral evidence, and the other is the documentary evidence supremacy will be
given to the documentary Evidence.

So, if we look at the Indian Evidence act then we see that the documentary evidence
is bifurcated into three categories -

1. General rules concerning proving documentary evidence in various cases are dealt
with under sections 61 to 73 A.
2. Second is the public documents which are dealt with under sections 74 to 78 and
3. Finally, it is 79 to 90 A which deals with presumptions as to the documents.

Section 61 deals with proof regarding the contents of documents - So the
section clearly states that for proving the contents of a particular document in a
court of law, there are 2 methods.

1. Primary Evidence which is discussed under sections 62 and

2. Secondary Evidence which is discussed under section 63.

Hence as the general rules say that there are only 2 methods for proving the content
of the document.

II. What is a Primary Evidence -

Under section 62 of the Indian Evidence Act of 1872, we find the exact definition of
primary evidence. Primary evidence is simply an original document in its original
form. For example, if a person wants to prove that he was a minor when he entered
into the contract then his original birth certificate can be considered primary
evidence.

It is prima facie the best or has the highest evidentiary values. The status of primary
evidence is such that the law gives it supreme importance as it has an extremely high
amount of certainty. This is because it is considered that it has very less chances of
tampering. The primary evidence should be in its original form.

Essentially the court always says to present the primary evidence as mentioned
under section 64 of the Indian Evidence Act but there are certain exemptions for the
same which are discussed under section 65 of the Indian Evidence Act. Section 65
discusses the point that in some restrictive cases in which secondary evidence can
also be given to prove a fact. So, if a particular case is absent in section 65 then it
shall be proved only via primary evidence.

In the case of Prithi Chand vs State of Himachal Pradesh 2 it was held that when we
look into the carbon copies, they are primary evidence of each other as they are
brought from the same source and a uniform process. But such carbon copies cannot
be considered as the primary evidence against the original document.

III. What is Secondary Evidence?

The definition of secondary evidence is given under section 63 of the Indian Evidence
Act of 1872 and it includes five major things that can be accepted in the form of
secondary pieces of evidence.

In the case of J. Yashoda vs K. Shobha Rani3, it was held that the definition given
under section 63 of the secondary evidence is exhaustive in nature and therefore
includes all the elements of secondary pieces of evidence and can be considered as
fully comprehensive. This is reflected in the term ' means and includes' given under
the said section.

In the same case of J. Yashoda vs K. Shobha Rani 4, the rule of best evidence was
established. According to this rule, as long as the higher or superior form of evidence
is within the ambit of the person or can be reached by the person till then no inferior
proof will be accepted in the court of law. Hence according to this rule, the primary
evidence will be preferred. So, in the case where the original document (that is the
primary evidence) is present, no secondary evidence will be accepted. And if a
particular party wants to present the secondary evidence, then they must establish a
proper explanation of the absence of the primary evidence of the same.

IV. Now the Question arises when can the secondary evidence be given?
Now when we see section 65, we come across seven particular conditions where a
document can be proved via the process of giving up secondary evidence. To Prove
what can the secondary evidence be given.

1. To show the existence of a particular document

2. To show the condition of a particular document
3. To show the content of a particular document

V. Amendment in the Indian Evidence Act

After the amendment in 2000, the Indian evidence act got two new sections one was
section 65 A, and the other was section 65 B.

Section 65 A states that any evidence which is given in the form of electronic shall be
proved or will be considered admissible in the court under section 65 B.

In the case of Anvar P.V. vs P.K. Basheer5, it was held that when we deal with
secondary evidence and electronic documents then its admissibility depends upon
the satisfaction of conditions given under section 65 B of the Indian Evidence Act.

Under section 65 B (1), any document or information which is present in an electronic

form shall be considered also as a normal document as defined under section 3. This
is done after the satisfaction with the conditions mentioned under this section.

VI. State (NCT of Delhi) v. Navjot Sandhu6

Facts: In this case, the accused was punished for various provisions under IPC. Out of
all the prominent pieces of evidence, one of the most prominent ones was the
accused phone's call records.

Fact in Issue: Whether such evidence of call record is admissible in the court of law?

Judgment : In the case of Navjot Sandhu the Apex court came with certain
exceptions given under Section 65 A. The court held that cellular phones are
secondary evidence because the primary evidence would involve the information
which is possessed by telecom servers.

VII. Notice to Produce

Section 66 of the Indian Evidence Act deals with the rules which deal with notification
to produce. This section aligns with section 65 (a), where the possession of the
original documents is with some other party. This means that whenever secondary
evidence is presented before the court a notice must be given to the person who has
the original document in its possession. This can be given to that person's attorney
or pleader as the case may be.
There is a system of check and balance that states that the notice shall be produced
in the manner "prescribed by law" and if there is no such law then the notice shall be
presented as the court decides reasonably.

Hence when we critically analyze this section then we can say that the 'notice to
produce' under section 66 of the Indian Evidence Act is a compulsory condition
that needs to be followed and if such notice is not given to the other party, then
the other party cannot be restricted to present the original document.

VIII. A short critical Question that might come to your mind after reading
section 66.

Now there must be a question in your mind that suppose a particular opposite party
refuses to produce the original document and the court subsequently admits the
secondary evidence then in such a circumstance can the opposite party present the
original document later? the answer to this question is complete No. this is inferred
from section 164 of the Indian Evidence Act where it is clearly stated when a
particular party refuses to produce a particular document in a circumstance where he
knew he had to present it then, later on, he cannot produce it until and unless the
other party also consents to it.

Documents that need to be Attested

Now under chapter 5 from sections 67 to 73 A deal with the documents which are to
be attested. This means that whenever you go to the court you also need to prove
the genuine nature of the document you present before it. Hence mere presentation
of the document in the court is not enough but must be proved as well. Hence, we
have section 67. In layman's terms attestation means evidence or proof for
something.

IX. Section 67 deals with the case of proof of signature and handwriting of the
person

Under section 67 of the Indian evidence act, it is clearly stated when there is a
question regarding the signature and handwriting of the person then the
handwriting or signature done on the document shall be only proved with the
handwriting of the person who had made it.

X. Amendment made with the amendment of 2000.

Section 67 A came with the amendment in 2000. Under this section If there is an
electronic signature and any person is contending that it is not his signature, and it
has been affixed then it is the contending person only who has to prove it. An
exception to the same is of secure electronic signature.
XI. Section 68 deals with the Proof regarding the document which needs to be
attested

Under section 68 of the Indian evidence act, it has been clearly said that if
documents need to be attested following the law, then such a document shall not be
taken in as a piece of evidence in the court until and unless it is done in the
attendance of at least one of the attesting witnesses.

The exception under section 68 states that in cases where a will has been registered
under the Indian registration act of 1908 then under such circumstances the attesting
witness need not be required by the court until and unless the executor himself
refuses that he has not executed the document. This means there is a false or
tampered execution of the will is being shown.

Execution of a document involves two steps -

1. Signature of the person

2. He has agreed to all the contents of the document with full consent.

The term Artist it is not defined in any part of the Indian Evidence Act but the transfer
of property act defines the term under Section 3. And it says that it means the person
saw the other person executing the document.

XII. Section 69: Attestor is not found

Section 69 deals with the cases where the attestor is not found. Section 69 talks
about a situation where the new witness is present or if the document was executed
in the United Kingdom, then in both the situation it must be proved that the
signature done by the executor and the attesting witnesses was done in their
handwriting.

XIII. Section 70 - Admission by Party to Attested Document

Section 70 deals with a situation where a party admits to having executed the
attested document even if the document is required to be attested following the law.
Here we need to understand that admission under section 70 is not equivalent to
admission under section 22. So, for example, if a person makes an admission that he
executed the sale deed and it is his signature on the document but denies from the
fact that there was any witness that attested, then the bond will be required to be
proved by calling the attesting witness under section 68.

XIV. Section 71 -

Now there can be situations where attesting witness forgets or denies the execution
of the document. then in such circumstances section, seventy-one would be upheld.
under this section, it says that when a particular attesting witness denies or forgets
that he had executed a document then it can be proved by other evidence.

XV. Section 72 -

The section simply says that when a document does not require to be attested then
even if it is attested still, it can be proved as unattested.

So, to prove a document that is attested firstly we have to prove that it is attested,
and secondly, the signature but to prove an unattested document the only proof
required is execution.

XVI. Section 73

Section 73 clearly states that when there is a question to prove a signature, writing,
or a seal of a particular person when it may be proved with the help of any written
matter, signature, writing, or seal of that particular person who has been already
admitted or proved in the court to be valid. Under this section, the court also has the
discretionary power to direct a person to write certain words or figures to enable the
court to determine and compare such signature, writing, or seal under the section.

 B.A. LL.B., 2nd year Student, School of Law at University of Petroleum & Energy
1

Studies (UPES) Knowledge Acres, Kandoli Dehradun, Uttarakhand, India. Email:

500084643@stu.upes.ac.in.

 MANU/SC/0420/1989.
2

 MANU/SC/7314/2007.
3

 MANU/SC/7314/2007.
4

 MANU/SC/0834/2014.
5

 MANU/SC/0465/2005.
6