(a). "An examined copy is a copy sworn to be a true copy, by a witness who has compared it line for line with the original, or who has examined the copy while another person read the original. The document must be in a character and language that the witness understands and he must also have read the whole of it."—Best, 8th Ed., 425.

(b). A written statement of the contents of a copy of a document, the original of which the person making the statement has not seen, cannot be accepted as an equivalent of that which this section renders admissible, namely, an oral account of the contents of a document given by some person who has himself seen it-Kanyalal v. Pyarabai, I. L. R. 7 Bom. 139.

(c). The cases, noted below, which allowed the production of a copy, have no legal force now: (1) Unida Rajata B. Bahadoor v. P. V. Naidu, 7 M. I. A. 509; (2) Tayabannessa v. Sham Kissore Rai, 7 B. L. R. 627; (3) Ajudhia Prusaud Singh v. Amrad Singh, 6 B. L. R. 509; (4) Ram Gopal Rai v. Gordon Stewart & Co., 14 M. I. A. 453; (5) Makbul Ali v. Masnad Bibi, 3 B. L. R. 54.

Cl. 4.-The common case of counterparts is pottah and kabuliut. Vide Munn v. Goldbold, 3 Bing., 292.

(a). A let lands to B, who sublet to C, a ryot. C sued for possession of part, after an alleged dispossession, making A a partydefendant to the suit. At the hearing, C, in order to prove that the lands in dispute were part of those let to him by B, tendered in evidence the kabuliut given by him to B. Held, that C should have produced the pottah given him by B, and the grant from A to B,

or sufficiently account for their absence; and that, as he did not do either, the kabuliut (which was merely secondary evidence of C's pottah) was inadmissible, even though it was produced from the possession of the landlord, A-Surjo Narain Ghose v. Hurri Narain Mollo, 1 C. L. R. 547.

Cl. 5.-It is a condition necessary that the person giving such evidence must have seen the original himself.

Proof of docu

64. Documents must be proved by ments by primary primary evidence except in the cases hereinafter mentioned.


This section lays down the general rule of law that documents must be proved by primary evidence, i.e., by the production of the documents themselves, and that no secondary evidence of their contents can be given except in the cases hereinafter mentioned.

Cases in which

may be

65. Secondary evidence

secondary evi given of the existence, condition or contents of a document in the follow

dence relating to documents may

be given.

ing cases:

(a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section sixty-six, such person does not produce it;

(b) 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;

(c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;

(d) When the original is of such a nature as not to be easily moveable;

(e) When the original is a public document within the meaning of section seventy-four ;

(ƒ) When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in British India, to be given in evidence ;

(g) When the originals cousist of numerous accounts or other documents which cannot conve

niently be examined in Court, and the fact to be proved is the general result of the whole collection.

In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents,

Purport of the Section.-Before the passing of the Evidence Act, there was no section in any Act relating to evidence defining clearly the cases in which secondary evidence of a document could be given, but it was known law that amongst the grounds which authorized the admission of secondary evidence was the loss or destruction of the original. This Act defines the cases in which secondary evidence is admissible. In section 64 the general rule of law is laid down, that documents must be proved by primary evidence except in the cases mentioned in sec. 65. Section 65 gives the various cases in which secondary evidence may be given. The first is when the document is in the possession or power of the opposite party, or of any person out of the reach of, or not subject to the process of, the Court, or of any person legally bound to produce it, but who fails to produce it when required. The second, when the contents are admitted by the opposite party in writing. The third, when the original is lost or destroyed. The fourth, when the original is not easily moveable. The fifth, when the original is a public document. The sixth, when the document is one of which a certified copy can be used. And the seventh, when the originals consist of numerous documents or accounts, the general result of which is the fact to be proved. Another branch of the law of Evidence is contained in sec. 91 and the following sections. It deals with the question, how far oral evidence or evidence of oral communications may be given 'to vary, control or add to the effect of a document.

This section is applicable to both Civil and Criminal cases.

Nature of Secondary Evidence under the Several Clauses.—In cases under clauses (a), (c) and (d), any secondary evidence is

admissible. The words "in cases (a), (c) and (d), any secondary evidence is admissible" are too clear and too strong to be controlled by anything that follows—In the matter of a collision between the Ava and the Brenhelda, I. L. R. 5 Cal. 568.

Under clauses (e) and (f), secondary evidence is admissible even though the original is in existence; but in these cases certified copy of the document and no other kind of secondary evidence is admissible. There are, it seems, no recognized degrees of secondary evidence concerning the contents of a private document. A party entitled to resort to this mode of proof may use any form of it; . his not adducing, or even wilfully withholding some other, likely to be more satisfactory, is only a matter affecting the weight and value of such evidence. A private copy is as admissible as an official one; parol evidence is as admissible as either.

Necessity of accounting for Non-production of Original Document. By the law of evidence administered in England, which has been, in a great measure, with respect to deeds, made the law of India, the first condition of the right to give secondary evidence of the contents of a document not produced in Court, is the accounting for the non-production of the original; therefore, when no attempt is made to obtain the original from the proper person, or even to inquire whether or not it is in the custody of the person, in whose custody it is supposed to be, in short, when no search for it or inquiry respecting it is made, secondary evidence will not be admitted.* Whether or not sufficient proof of search for, or loss of, an original document, to lay a ground for the admission of secondary evidence, has been given, is a point proper to be decided by the Judge of first instance, and is treated as depending very much on his discretion. His conclusion should not be overruled, except in a clear case of miscarriage. Until a party has exhausted all the means prescribed by law for compelling the person to produce a document known to be with him, and so long as the original is procurable or its loss not satisfactorily accounted for, secondary evidence cannot be admitted.‡

Whether a sufficient foundation has been laid for admitting secondary evidence is often a matter of nicety, and depends on whether sufficient proof has been given of the destruction or loss of the document; whether a notice to produce is required,—as in many cases the proceedings amount to constructive notice, and in others notice to produce is dispensed with by statute,-and if so, whether the notice given is sufficient in its terms, and has been given in proper time, &c.

* Vide Bhubaneswari Debi v. Hari Sarun Sarma Moitra, I. L. R. 6 Cal. 720,
+ Vide Haripria Debi v. Rukmini Debi, I. L. R. 19 Cal. (P. C.) 488.

↑ Vide Girish Chunder Lahiri v. Ram Lal Sarcar, 1 W. R. 145.

Objections to Admission of Secondary Evidence.-A defendant who does not object to the admission of secondary evidence at the time it is admitted cannot be allowed to object to it in special appeal -Lochan Singh v. Het Narain Singh, 24 W. R. 232. Vide also Chimnaji Govind Godbole v. Dinkar Dhondev Godbole, I. L. R. 11 Bom. 320; (2) Akbar Ali v. Bhyea Lal Jha, I. L. R. 6 Cal. 666; (3) Gour Surun Dass v. Kanhya Singh, 2 W. R. 237; (4) Kasinath Mukerji v. Mohesh Chundra Gupta, 26 W. R. 168,

Cl. (a).— Vide notes to sec. 66.

(a). Documents which a witness is not bound to produce are mentioned in sections 130 and 131 post. A witness may also refuse to produce a document on which he has a lien.

(b). Secondary evidence tendered to prove the contents of an instrument which is retained by the opposite party after notice to produce it can only be admitted in the absence of evidence to show that it was unstamped when last seen-The Marine Investment Co. v. Haviside, L. R. P. C. 624. Vide also Seanandan v. Kollakiran,

I. L. R. 2 Mad. 208.

(c). In a suit by the purchaser of a debt, the plaintiff stated that, in 1873, A executed a bond in favour of B to secure the repayment of Rs. 1,000, and that he had purchased the interest of B at a sale in execution of a decree against him. The plaintiff now sued A upon the bond, making B a party. At the trial A denied the execution of the bond, and it was not produced by the plaintiff who, having served B with notice to produce, tendered secondary evidence of its contents. B was not examined as a witness, and no evidence was given of the loss or destruction of the bond. Held by Pontifex and Morris JJ., (Prinsep J. dissenting), that secondary evidence was not admissible- Woomesh Chunder Ghose v. Shama Sundari Bai, I. L. R. 7 Cal. 98.

Cl. (b). (a). Notwithstanding the provision in sec. 22, a written admission is admissible as proof of a document, even though the original is in existence and might be but is not produced.

(b). The defendant in an ejectment suit claimed to be in possession under a mortgage-deed for Rs. 1,000, executed in 1865 but not registered, and a second mortgage-deed of Rs. 50 of the same date, in which the first mortgage was recited. Held, that by virtue of sec. 13 of the Registration Act, 1864, the first mortgage-deed could not be put in evidence, and that the defendant could not give secondary evidence thereof under sec. 65 (b) of the Act-Divethi Varada Annyangar v. Krishnasami Ayyangar, I. L. R. 6 Mad. 117.

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