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"The defendant wrote a letter to me at the time they took the tenancy. That letter is lost. This is the true copy of the original. Exhibit 6 marked"

The document was thereupon admitted by the learned Judge and accepted as an Exhibit in spite of the appellant's objection. The question is whether in the circumstances of the case a copy of the letter could go in as evidence Section 65 of the Indian Evidence Act gives the circumstances when secondary evidence relating to a document may be given. One of the circumstances when under that section, secondary evidence may be given of the existence, condition or contents of a document is when the original has been destroyed or lost. That section however deals merely with the foundation that has to be laid for the reception of the secondary evidence. To admit the secondary evidence it is not sufficient to show merely that the original letter is lost But the secondary evidence itself must be of the nature described in Section 63 of the Indian Evidence Act Section 83 runs as follows:

11. There is nothing to show that the copy which has gone into the records as Exhibit 6 satisfies the requirements of Section 63 of the Indian Evidence Act, Kartick Chandra Saha describes it as "true copy" but that is an expression unknown to Evidence Act. Only that copy would be admissible which is made from or compared with the original. All "true copies" may not necessarily satisfy this qualification. In the absence of evidence that Exhibit 6 had been made from or compared with the original. Exhibit 6 should not have been received as evidence. In Shrimati Rani Haripria v. Rukmini Devi, (1892) 19 Ind App 79 the Judicial Committee of the Privy Council refused to accept as evidence a document which had gone in as a copy of another document, on the ground that none of the attesting witnesses had been called and no attempt made to identify the exhibit as being a copy of the document which had been exhibited. In the result, it is apparent that Exhibit 6 was in fact inadmissible as evidence. Mr. Ghosh commented, not without justification that it is not at all surprising that the learned trial Judge himself was not prepared to rely on it when he was called upon to decide Issue No 2 on the strength of this exhibit. In this connection, Mr. Ghosh further argued that there is no evidence to show that a sufficient search had been made to trace out the original and until such a search has been made and proved in evidence even the foundation for leading secondary evidence as provided for in Section 65 of the Indian Evidence Act is not properly laid. Mr. Ghosh contended that in order to show that a document is lost it is not enough to make a statement that the letter is lost. It is necessary on the other hand to show that there was a diligent search to recover the lost document. In support of this proposition Mr Ghosh relied on certain observations made in Jaldu Ananta Raghuram Arya v. Rajah Bommadevara AIR 1958 Andh Pra 418. It was held in that case that since every deed is the best evidence of its contents it non-production will necessarily raise the suspicion in the mind of the Court and great care and circumspection would be necessarv to decide whether there has been real'y a genuine loss Section 65 of the Indian Evidence Act permits the leading of a secondary evidence only where the ori-ginal document has been destroyed or lost. There must therefore, be a sufficient proof of the search for the original to render secondary evidence admissible. It must be established that the party has exhausted all resources and means in search of the document which were available to him Though this is a question of discretion left to the trial court and an appellate court would not ordinarily interfere with the exercise of such discretion, the appellate court would certainly interfere if it finds that the trial court has accepted the loss of the document as a fact without taking into consideration the prerequisite conditions that are required by the Evidence Act. These principles on which Mr Ghosh relied are to our mind beyond any possible challenge. The principles have been enunciated in Halsbury's Laws of England Vol. XV, 5th Edition, at pp. 358-359 in the following manner:

ere a document has been lost or destroyed, secondary evidence of its contents is admissible. The court must be satisfied that the document existed, that the loss or destruction has in fact taken place and that reasonable explanation of this has been given. Thus a bona fide and diligent search must have been made in the place where the instrument would most properly be found, but not necessarily in every possible place; nor need the search have been made recently or for, the purpose of the cause."