The
law regarding the mandatory principle of filing original documents and
exemptions in filing the same can be traced by a combined reading of the
provision of the Civil Procedure Code, 1908 and Indian Evidence Act 1872. Order
7 Rule 14 of The Code of Civil Procedure lays down that “where a plaintiff sues
upon a document or relies upon a document in his possession or power in support
of his claim, he shall enter such documents in a list and present the same at
the stage of filing and he would at the same time deliver the document and a
copy thereof”[1].
The order further goes on to state that if the document so needed is not in the
possession of the plaintiff he would state in whose possession it is[2]
and a document which ought to have been produced before the court and if not
produced cannot be received in evidence without the leave of the court[3]
.
Chapter
V of the Evidence Act deals with documentary evidence. Section 61
thereof lays down that the contents of documents may be proved either by
primary or by secondary evidence[4].
As per Section
62
of the Evidence Act, primary evidence means the document itself produced for
the inspection of the Court[5].
Section 63 of the Indian Evidence Act, 1872 states that secondary evidence
means and includes 1) Certified copies given under provisions hereinafter
contained 2) copies made from original by mechanical processes which in
themselves ensure accuracy 3) copies made from or compared with original 4)
counterparts of documents against parties who did not execute them and 5) oral
accounts of documents given by person who saw it[6].
Section 64
lays down that documents must be proved by primary evidence except in the cases
mentioned in the following Sections[7].
To put the matter briefly, the general rule is that secondary evidence is not
admissible until the non-production of primary evidence is satisfactorily
proved. But in cases where the original document is not available or cannot be
produced before the court then the parties must lead secondary evidence in
terms of Section 65 of the Indian Evidence Act[8].
Section 65 of the Indian Evidence Act gives a list of situations where
secondary evidence as to the existence, conditions and contents of a document
can be given. The list mentions the cases such as where the original is in
possession of person against whom it is to be proved, when the original is out
of reach of the court, when the person has failed to produce it even after a
notice of Section 66, when the document has been admitted in writing by person
against whom it is supposed to be proved , when the document is lost or
destroyed , when the document is from its nature not easily movable, when the
document is a public document , when the document is such of which certified
copy is permitted to be filed and when the originals are in numerous accounts [9].
It
would be pertinent here to cite the case of Aktiebolaget Volvo and Ors. v. Vs.
R. Venkatachalam and Anr; 160(2009)DLT100 where the question for consideration was whether it is permissible in law to permit a party to a civil suit to file only photocopy of the document and exempt such party from placing the original document on the file of the court and merely to give inspection thereof to the opposite party at the time of admission/denial of documents and at the time of tendering the document into evidence and to put the Exhibit mark again on photocopy on the file of the court.
R. Venkatachalam and Anr; 160(2009)DLT100 where the question for consideration was whether it is permissible in law to permit a party to a civil suit to file only photocopy of the document and exempt such party from placing the original document on the file of the court and merely to give inspection thereof to the opposite party at the time of admission/denial of documents and at the time of tendering the document into evidence and to put the Exhibit mark again on photocopy on the file of the court.
The
Hon’ble judge remarked that sometimes the documents produced before the court
may be title documents to the immovable properties of the parties or of
financial investments of the parties or as to educational
qualifications/experience of parties and which may be irreplaceable qua the
parties and loss/damages whereto may depreciate the value of the property/financial
investments of the parties[10].
In such cases where the documents are not doubtful the court can allow the
parties to file the photo copies and present the original document at the stage
of admission denial of documents[11].
Reference
is invited to the case of Promila and Ors. v. Hazi Gulam Rasool; 2012IXAD(Delhi)359,
wherein the court held
“I
am, therefore, of the view that if the provisions of the codified law so
permit, it would be expedient to, where the court finds that the original
document is such, the loss or damage whereto could cause irreparable loss or
inconvenience to a litigant, to allow such original to remain in the safety of
its owner/possessor and to allow filing of photocopy thereof only, with a
condition on the party to produce the original for inspection as and when
required[12].”
Summing
up the entire issue a party can be exempted from filing the original documents
as required in the case of a plaintiff under Order 7 Rule 14 if he satisfies
the court as to his inability to produce the original document and that his
case falls within Section 65 of the Evidence Act and the court exercising the
discretion in this regard in the light of principles of law and the cases
already decided allows his application.
The author is a practicing lawyer at the courts of Delhi and can be contacted at lawyer.soniasaini@gmail.com
[1] Order 7 Rule 14(1), Civil Procedure
Code, 1908.
[2] Order 7 Rules 14(2), Civil
Procedure Code, 1908.
[3] Order 7 Rule 14 (3), Civil
Procedure Code, 1908.
[4] Section 61, Indian Evidence Act,
1872.
[5] Section 62, Indian Evidence Act,
1872.
[6] Section 63, Indian Evidence Act,
1872.
[7] Section 64, Indian Evidence Act,
1872.
[8]
Punjab and Sind Bank v. C.S Company and Ors; (2012)2SCC743 (Para 10)
[9] Section 65, Indian Evidence Act,
1872.
[10] Aktiebolaget Volvo and Ors. v.
Vs.R. Venkatachalam and Anr; 160(2009)DLT100 (Para 7).
[11] Aktiebolaget Volvo and Ors. v.
Vs.R. Venkatachalam and Anr; 160(2009)DLT100 (Para 29).
[12] Promila and Ors. v. Hazi Gulam Rasool; 2012IXAD(Delhi)359 (Para 5 and
Para 6).
