Andhra Pradesh High Court – Amravati
M/S Sai Resource Pvt. Ltd. vs M/S Aspire Techno Engineers, on 10 December, 2024
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C.R.P.No.3004 of 2024)
*HON'BLE SRI JUSTICE RAVI NATH TILHARI
+ CIVIL REVISION PETITION NO: 3004 OF 2024
% 10.12.2024
#1. M/s Sai Resource Pvt. Ltd.
......Petitioner
And:
$ 1. M/s Aspire Techno Engineers.
....Respondent.
!Counsel for the petitioner : Sri S.V.S.S.Siva Ram
^Counsel for the respondent/(s) : ---.
<Gist:
>Head Note:
? Cases referred:
1. (2020) 5 SCC 178
2. 2023 SCC OnLine SC 1585
3. 2004 SCC OnLine AP 410
4. 2013 SCC OnLine 13767
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C.R.P.No.3004 of 2024)
HON'BLE SRI JUSTICE RAVI NATH TILHARI
CIVIL REVISION PETITION NO: 3004 OF 2024
1. M/s Sai Resource Pvt. Ltd.
......Petitioner
And:
1. M/s Aspire Techno Engineers..
....Respondent.
DATE OF JUDGMENT PRONOUNCED : 10.12.2024
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
1. Whether Reporters of Local newspapers may be
Allowed to see the judgments? Yes/No
2. Whether the copies of judgment may be marked
to Law Reporters/Journals? Yes/No
3. Whether Your Lordships wish to see the fair
Copy of the Judgment?
Yes/No
____________________
RAVI NATH TILHARI, J
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APHC010541152024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3299]
(Special Original Jurisdiction)
TUESDAY ,THE TENTH DAY OF DECEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
CIVIL REVISION PETITION NO: 3004/2024
Between:
M/s Sai Resource Pvt. Ltd. ...PETITIONER
AND
M/s Aspire Techno Engineers ...RESPONDENT
Counsel for the Petitioner:
1. CKR ASSOCIATES
Counsel for the Respondent:
1.
The Court made the following:
ORDER :
Heard Sri S.V.S.S.Siva Ram, learned counsel for the petitioner.
2. The petitioner is the defendant in C.O.S.No.5 of 2024 on
the file of the Court of Special Judge for Trial and Disposal of
Commercial Disputes, Visakhapatnam (in short ‘Special Court’).
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3. The respondent/plaintiff filed O.S.No.222 of 2019 on the file
of the Court of the learned II Additional District Judge,
Visakhapatnam,for recovery of a sum of Rs.1,38,21,843/- together with
interest @ 25% per annum from the petitioner/defendant.
4. Later on, on the objection and filing of the written
statement, the learned Additional District Judge returned the plaint, for
filing before the Commercial Court, Visakhapatnam, the nature of
dispute being the commercial dispute. The parties were directed to
appear before the Special Judge. The O.S., was renumbered as
C.O.S.No.5 of 2024. In the C.O.S., the petitioner/defendant filed
I.A.No.326 of 2024 under Sections 63, 65 and 114 of the Indian
Evidence Act,1872 (in short ‘Act’) seeking to permit the Memorandum
of Agreement, (MOA) dated 16.09.2019, as secondary evidence and
mark the same as exhibit on behalf of D.W.1. The respondent/plaintiff
filed counter, and on consideration, the Special Judge rejected
I.A.No.326 of 2024, vide order, dated 04.10.2024, on the ground that
there was non-compliance with the provisions of Section 66 of the
Indian Evidence Act,1872 (in short ‘Act’) and Order XI rule 5(2) of the
Code of Civil Procedure,1908 (in short ‘CPC‘), as applicable to the
Commercial Courts.
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5. Challenging the order, dated 04.10.2024 the petitioner has
filed the Civil Revision Petition under Article 227 of the Constitution of
India.
6. Learned counsel for the petitioner does not dispute that
there was non-compliance with Section 66 of the Evidence Act, but he
submits that the plaintiff, as P.W.1, in his deposition, denied the
execution of the Memorandum of Agreement (MOA), dated 16.09.2019.
So, the requirement of sending notice to the plaintiff under Section 66 of
the Act to produce MOA, dated 15.09.2016 was an empty formality. He
submits that the Court had the discretion to dispense with the
requirement of notice. However, he admits that the petitioner’s case is
not covered under Clauses (1) to (6) of the first Proviso to Section 66 of
the Act.
7. I have considered the aforesaid submissions and perused
the material on record.
8. The relevant provisions deserve to be reproduced first.
9. Section 65 of the Evidence Act reads as under :
“65. Cases in which secondary evidence relating to
document may be given.
Secondary evidence may be given of the existence, condition or
contents of a document in the following 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
6
(RNT,J
C.R.P.No.3004 of 2024)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 66, 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
movable;
(e)When the original is a public document within the
meaning of section 74;
(f)[ When the original is a document of which a certified
copy is permitted by this Act, or by any other law in force in
[India] [[[Cf. the Bankers’ Books Evidence Act, 1891 (18 of
1891), Section 4.]], to be given in evidence;
(g)When the originals consist of numerous accounts or other
documents which cannot conveniently be examined in
Court, and the fact to be proved is the general result of the
whole collection.”
10. Section 66 of the Act reads as under :
Rules as to notice to produce:-Secondary evidence of the
contents of the documents referred to in section 65, clause
(a), shall not be given unless the party proposing to give such
secondary evidence has previously given to the party in
whose possession or power the document is, [or to his
attorney or pleader,] such notice to produce it as is
prescribed by law; and if no notice is prescribed by law, then
such notice as the Court considers reasonable under the
circumstances of the case:
Provided that such notice shall not be required in order to
render secondary evidence admissible in any of the following
cases, or in any other case in which the Court thinks fit to
dispense with it: –
(1) when the document to be proved is itself a notice;
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(2) when, from the nature of the case, the adverse party must
know that he will be required to produce it;
(3) when it appears or is proved that the adverse party has
obtained possession of the original by fraud or force;
(4) when the adverse party or his agent has the original in
Court;
(5) when the adverse party or his agent has admitted the loss
of the document;
(6) when the person in possession of the document is out of
reach of, or not subject to, the process of the Court.
11. A perusal of Section 65 of the Act, makes it evident that the
secondary evidence may be given of the existence, condition or
contents of a document in the cases covered by Clauses (a) to (g). As
per Clause (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 66, such person does
not produce it.
12. A bare perusal of Section 66 of the Act, makes it evident
that the secondary evidence of the contents of the documents referred
to in Section 65, clause (a) shall not be given unless the party
proposing to give such secondary evidence has previously given to the
party in whose possession or power the document is, [or tohis attorney
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or pleader ] such notice to produce it as is prescribed by law; and if no
notice is prescribed by law, then such notice as the Court considers
reasonable under the circumstances of the case. However, in the
matters covered by Clauses (1) to (6) of the Proviso, such notice shall
not be required to be given and in any other case, i.e., other than
Clauses (1) to (6), if the Court considers it reasonable under the
circumstances of the case, it has the power to dispense with such
notice.
13. In Jagmail Singh and Another V. Karamjit Singh and
Others1, the Hon’ble Apex Court has observed and held at paragraph
Nos.11 to 14 as under :
“11. A perusal of Section 65 makes it clear that
secondary evidence may be given with regard to existence,
condition or the contents of a document when the original is
shown or appears to be in possession or power against
whom the document is sought to be produced, 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 notice mentioned in Section 66 such person
does not produce it. It is a settled position of law that for
secondary evidence to be admitted foundational evidence
has to be given being the reasons as to why the original
evidence has not been furnished.
12. The issue arising out of somewhat similar facts and
circumstances has been considered by this Court in Ashok
Dulichand v. Madahavlal Dube [Ashok Dulichand v.
Madahavlal Dube, (1975) 4 SCC 664 : (1976) 1 SCR 246] ,
and it was held as under : (SCC pp. 666-67, para 7)
“7. … According to clause (a) of Section 65 of
Evidence Act, secondary evidence may be given of
the existence, condition or contents of a document
when the original is shown or appears to be in1
(2020) 5 SCC 178
9
(RNT,J
C.R.P.No.3004 of 2024)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 of any person legally bound to produce
it, and when, after the notice mentioned in Section
66 such person does not produce it. Clauses (b) to
(g) of Section 65 specify some other contingencies
wherein secondary evidence relating to a document
may be given.”
13. In the matter of Rakesh Mohindra v. Anita Beri
[Rakesh Mohindra v. Anita Beri, (2016) 16 SCC 483 : (2018)
1 SCC (Civ) 526] this Court has observed as under : (SCC p.
488, para 15)
“15. The preconditions for leading secondary
evidence are that such original documents could
not be produced by the party relying 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
document 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 be accepted.”
14. It is trite that under the Evidence Act, 1872 facts have to
be established by primary evidence and secondary evidence
is only an exception to the rule for which foundational facts
have to be established to account for the existence of the
primary evidence. In H. Siddiqui v. A. Ramalingam [H.
Siddiqui v. A. Ramalingam, (2011) 4 SCC 240 : (2011) 2
SCC (Civ) 209] , this Court reiterated that where original
documents are not produced without a plausible reason and
factual foundation for laying secondary evidence not
established it is not permissible for the court to allow a party
to adduce secondary evidence.”
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C.R.P.No.3004 of 2024)
14. In Vijay V. Union of India and Others2, the Hon’ble Apex
Court laid down the following principles in Paragraph Nos.32 to 35,
which read as under :
“32. Primary and Secondary Evidence stands explained by
a Constitutional Bench of this Court in Cement Corpn. of India
Ltd. v. Purya,14 (5-Judge Bench) as the former being evidence
that the law requires to be given first, the latter being evidence
that may be given in the absence of that original evidence
when a proper explanation of its absence has been given.
The terms “primary and secondary evidence” apply to the kinds
of proof that may be given to the contents of a document,
irrespective of the purpose for which such contents, when
proved, may be received.
33. Section 63 of the Evidence Act gives an exhaustive
definition declaring that secondary evidence “means and
includes” the five kinds of evidence mentioned therein. Section
65 of the Evidence Act allows secondary evidence to be
given of the existence, condition, or contents of documents
under the circumstances therein mentioned. It provides for
the circumstances in which secondary evidence can be
used when the original document is unavailable or
inaccessible. It is imperative to adhere to the principles
outlined in these sections, including the proper
documentation and authentication, to successfully produce
secondary evidence in legal proceedings.
34. After perusing various judgments of this Court, we can
deduce the following principles relevant for examining the
admissibility of secondary evidence:
33.1 Law requires the best evidence to be given
first, that is, primary evidence.
33.2 Section 63 of the Evidence Act provides a list
of the kinds of documents that can be produced
as secondary evidence, which is admissible only
in the absence of primary evidence.
33.3 If the original document is available, it has
to be produced and proved in the manner
prescribed for primary evidence. So long as the
best evidence is within the possession or can be2
2023 SCC OnLine SC 1585
11
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C.R.P.No.3004 of 2024)produced or can be reached, no inferior proof
could be given.
33.4 A party must endeavor to adduce primary
evidence of the contents, and only in exceptional
cases will secondary evidence be admissible. The
exceptions are designed to provide relief when a
party is genuinely unable to produce the original
through no fault of that party.
33.5 When the non-availability of a
document is sufficiently and properly
explained, then the secondary evidence can
be allowed.
33.6 Secondary evidence could be given when the
party cannot produce the original document for
any reason not arising from his default or neglect.
33.7 When the copies are produced in the
absence of the original document, they
become good secondary evidence. Still, there
must be foundational evidence that the
alleged copy is a true copy of the original.
33.8 Before producing secondary evidence of the
contents of a document, the non-production of the
original must be accounted for in a manner that
can bring it within one or other of the cases
provided for in the section.
33.9 Mere production and marking of a document
as an exhibit by the Court cannot be held to be
due proof of its contents. It has to be proved in
accordance with the law.
35. A reading of Section 65(a) of the Evidence Act
displays the following:
a. Secondary evidence can be presented as a substitute
when the original document/primary evidence is in the
possession of the opposing party or held by a third party;
b. Such a person refuses to produce the document
even after due notice,
12
(RNT,J
C.R.P.No.3004 of 2024)c. It must be ensured that the alleged copy is a true
copy of the original.”
15. The Hon’ble Apex Court in Vijaya‘s case (supra),
thus clearly laid down that when the non-availability of a document is
sufficiently and properly explained, then the secondary evidence can be
allowed. Secondary evidence could be given when the party cannot
produce the original document for any reason not arising from his
default or neglect. When the copies are produced in the absence of the
original document, they become good secondary evidence. Still, there
must be foundational evidence that the alleged copy is a true copy of
the original.
16. In K.Krishna Appala Naidu V. B.Sohanla and Others 3,
this Court, on consideration of the provisions of 65 & 66 of the Act
clearly held at Paragraphs No.7, 9 & 11 as under :
“7. A plain reading of the above provision would make it
clear that principle that as long as the original exists and is
available, it being the best evidence, must be produced, is
engrafted in the Section. The secondary evidence is
admissible only in the absence of primary evidence. The
Section also provides for an alternative method of proving the
contents of a document, which for various reasons, cannot be
produced in evidence. Where original document is in
existence, but not produced, secondary evidence by
production of copies is not admissible. The Section has been
designed to provide protection to persons who, in spite of
their best efforts, are unable to, for the circumstances beyond
their control, to place before the Court primary evidence of a
document as required by law. Secondary evidence should
not be allowed unless the circumstances so justify under3
2004 SCC OnLine AP 410
13
(RNT,J
C.R.P.No.3004 of 2024)the provisions of the Evidence Act. Further, the use of
exhibit as secondary evidence is question of procedure.
Though the Section does not refer to the case where mere
secondary evidence of the document is not tendered, but if
the document is to be admitted in secondary evidence, the
facts thereof have to be proved. The certified copy of the
original also can treated as secondary evidence. But the
contents of the documents sought to be marked as secondary
evidence cannot be admitted in evidence without production
of the original document. Under no circumstances can
secondary evidence be admitted as a substitute for
inadmissible primary evidence.
9. From a reading of the aforementioned provision, it is
clear that secondary evidence of the contents of the
documents referred to in Sec. 65(a) of the Evidence Act,
shall not be given unless the party proposing to give
such secondary evidence has previously given to the
party in whose possession or power the document is, or
to his attorney or pleader, such notice to produce it as is
prescribed by law.
11. Under what circumstances the secondary evidence
relating to document must be proved by primary evidence is
an exception to the cases falling under Secs.65 and 66 of
the Evidence Act. The person seeking to produce secondary
evidence relating to a document can do so only when the
document is not in his possession, and this is explained in
Sec. 65 of the Evidence Act, particularly in Sec. 65(a) of the
Evidence Act, which provides that when the original is shown
or appears to be in 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 Sec. 66 of the Evidence
Act, such person does not produce it. Though under Sec.66
of the Evidence Act, the petitioners were required to issue
notice to the person in whose possession the document is,
they have not mentioned in whose possession the document
is, nor issued any notice to the person from whom they are
seeking to summon the document. To enable a person take
recourse to the provisions of Secs. 65 and 66 of the
Evidence Act, it is necessary for him to establish that
the document sought to be summoned was executed
and that the said document is not with him, but is in
possession of the person against whom the application
is made to be produced for proving against him.”
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17. In Ram Das Singh V. Duli Chand4, the Allahabad High
Court observed and held that the secondary evidence, as a general rule
is admissible only in the absence of primary evidence. Essentially,
secondary evidence is an evidence which may be given in the absence
of that better evidence, which law requires to be given first, when a
proper explanation of its absence is given. Paragraphs 11 to 13, 16 &
19 of Ram Das Singh (supra) read as under:-
“11. It further observed that secondary evidence, as a
general rule is admissible only in me absence of primary
evidence. If the original itself is found to be inadmissible through
failure of the party, who files it to prove it to be valid, the same
party is not entitled to introduce secondary evidence of its
contents. Essentially, secondary evidence is an evidence which
may be given in the absence of that better evidence which law
requires to be given first, when a proper explanation of its
absence is given. The rule which is the most universal, namely
that the best evidence the nature of the case will admit, shall be
produced, decides this objection that rule only means, that, so
long as the higher or superior evidence is within one’s
possession or may be reached by him, he shall give, no inferior
proof in relation to it.
12. Then referring to Section 65, the Court said that it deals
with the proof of the contents of the document tendered in
evidence. 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,
documents are to be provided by primary evidence. Section 65,
however, permits secondary evidence to be given for 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.
4
2013 SCC OnLine 13767
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13. In Ashok Dulichand v. Madahavla Dube, (1975) 4 SCC
664 : AIR 1975 SC 1748, the Court considered Section 65(a) of
Act, 1872 and said:
“…. Secondary evidence may be given of the
existence, condition or contents of a
document when the original is shown or
appears to be in 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 of any person legally bound to
produce it, and when, after the notice
mentioned in Section 66 such person does
not produce it.”
16. The principle underlying secondary evidence is well known
with regard to proof of facts that best evidence must come
before the Court. The best evidence, which, of course, is the
original document would furnish an opportunity to the Court to
examine various surrounding facts attached with the original
alone like the voraciousness of the signatures of the parties, the
age of the document and other host of factors depending on the
facts of each case. It is in absence of the best evidence, the
secondary evidence is permitted to be adduced. The objective
being judicial investigation by Court to fathom the truth. It is for
this reason that the law although insists upon production of the
best evidence i.e. the original document yet it permits with
proper safeguards production of secondary evidence of the
original if certain conditions are satisfied, namely, the existence
of the document which might have been lost or destroyed or the
party in whose possession the original is shown or appears to
be have refused to produce it before the Court despite notice or
its existence, condition or contents have been proved to be
admitted in writing so on and so forth. The rule regarding
secondary evidence is not an open rule allowing any piece of
photostat copies or an oral account of the original and the
likewise to be tendered as secondary evidence.
19. Under what circumstances the secondary evidence relating
to document must be proved by primary evidence is an
exception to the cases falling under Sections 65 and 66 of Act,
1872. The person seeking to produce secondary evidence
relating to a document can do so only when the document is not
in his possession. To enable a person to take recourse to
Sections 65 and 66 of Act, 1872, it would be necessary to
establish that the document sought to be summoned was
executed and that the said document is not with him, but in
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C.R.P.No.3004 of 2024)
possession of the person against whom the application is made
to be produced for proving against him.”
18. It is thus a settled position of law that for secondary
evidence to be admitted foundational evidence has to be given being
reasons as to why the original evidence has not been furnished. Where
the original documents are not produced without a plausible reason and
factual foundation for laying secondary evidence is not established, it is
not permissible for the Court to allow a party to adduce secondary
evidence.
19. Consequently, the petitioner’s application for the secondary
evidence could be considered only when the Clause (a) of Section 65
was satisfied, which clearly provides that if the original is shown
inter-alia not to be in possession or power of the person against whom
the document is sought to be proved, but such person does not
produce it after the notice under Section 66 of the Act. Without
compliance with Section 65 (a) r/w 66 of the Act, it cannot be said that
the statutory requirement for laying the secondary evidence is satisfied.
20. A perusal of the written statement shows that,it is the
specific case of the defendant/petitioner that the original copy of the
Memorandum of Agreement (MOA) dated 15.09.2016 was in
17
(RNT,J
C.R.P.No.3004 of 2024)
possession of the plaintiff. The petitioner had also filed a copy of the
MOA along with his written statement. The relevant part of paragraph
11 of the written statement reads as under :–
“the original copy of the Memorandum of
Agreement (MOA) dated 15.09.2016 is in
possession of the plaintiff and the Photostat
copy of the same is herewith filed.”
21. So, it is the defendant’s own case that the original of
Memorandum of Agreement is in the possession of the
plaintiff/respondent. It cannot therefore be said that giving of the notice,
complying with the requirements of Section 66 of the Act. would be a
futile exercise or an empty formality. The statement of the plaintiff as
P.W.1, at this stage, cannot be taken as final or conclusive. The
deposition made in trial is always subject to consideration with the other
evidence. So, the Court could rightly not proceed based on the
deposition of P.W.1, to consider the application without compliance
under Section 66 of the Act. If the Court proceeds based on the
deposition of P.W.1, that would mean accepting the case of the plaintiff
that there is no Memorandum of Agreement, whereas the case of the
petitioner/defendant is of the existence of MOA.
22. Learned counsel for the petitioner submits that based on
the deposition of P.W.1, any such argument was also not advanced
18
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C.R.P.No.3004 of 2024)
before the learned trial Court. So, there was no occasion for the learned
trial Court to consider that aspect.
23. Undisputedly, the petitioner’s case does not fall under
Clauses (1) to (6) of the Proviso to Section 66. The petitioner also did
not file any application seeking dispensation of the compliance, under
Section 66 of the Act, citing the circumstances invoking the power of
the Court to dispense with the requirement of giving previous notice to
the plaintiff to produce MOA, dated 15.09.2016.
24. I am of the view that in the absence of compliance made by
the petitioner under Section 66 of the Act, there is no illegality in the
impugned order.
25. The Civil Revision Petition is devoid of merits, and is
dismissed.
26. Learned counsel for the petitioner submits that since the
rejection is on the ground that the petitioner did not comply with the
provisions of Section 66 of the Act, if the defendant/petitioner files a
fresh application, after complying with the provisions of Section 66 of
the Act, such application may be considered by the learned trial Court.
27. The prayer is genuine. If any such application is filed with
due compliance of the provisions of Section 66 of the Act, the Court
shall consider the same in accordance with law.
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C.R.P.No.3004 of 2024)
No order as to costs.
As a sequel thereto, miscellaneous petitions, if any pending, shall
also stand closed.
____________________
RAVI NATH TILHARI, J
Date :10.12.2024.
Note :- L.R. Copy to be marked.
B/o
RPD.
20
(RNT,J
C.R.P.No.3004 of 2024)
249
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
(DISMISSED)
CIVIL REVISION PETITION NO: 3004 OF 2024
Date :10.12.2024
Note :- L.R. Copy to be marked.
B/o
RPD.
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