Indian Kanoon - Search engine for Indian Law

11. Firstly considering the facts and circumstances involved in the case it is found that, in the plaint pleadings and also in the proof affidavit of the one through whom Ex.A1 has been marked, it has been specifically stated that, the original sale agreement dated 20.07.2009 was handedover by the respondent/plaintiff to his previous counsel and since he had lost it on 16.07.2012, the already existed photo copy of the sale agreement duly notarized which was claimed to be in the custody of the respondent/Plaintiff had been given by him, to his counsel and based on it the present suit has been instituted and the said photo copy duly notarized has been marked as Ex.A1. Further it is also specifically pleaded that, the previous counsel of the respondent/plaintiff had preferred a complaint before the Tiruchendur, Police station on the same day on 16.07.2012 itself and the same day also obtained a certificate to that effect. Further it has also been specifically pleaded and oral evidence have been adduced that, the paper publication regarding the loss of original sale agreement has been given in the "Malai Murasu" news paper on 26.02.2013 and thereafter on 16.03.2013 the sub Inspector of Police of Tiruchendur, Police station has given a certificate that the lost document was unable to be traced. It is pertinent to note that the copy of the complaint dated 16.07.2012 by the respondent's previous counsel lodged before the concerned police station regarding the loss of the original sale agreement along with the CSR receipt issued by the concerned police station has been produced and marked as Ex.A4 and connected paper publication subsequently made on 22.02.2013 in an attempt to trace the lost document has been produced and marked as Ex.A5 and also the certificate issued by the concerned police on https://www.mhc.tn.gov.in/judis 16.03.2013 that the lost document was unable to be traced has been produced and marked as Ex.A6

16. Further while analyzing the provision of law, section 65 of Indian Evidence Act 1872, sub clause (c) makes it clear that, when the original has been destroyed or lost secondary evidence may be given regarding that document. Further section 63 of the Indian Evidence Act 1872 makes it clear that, Secondary Evidence means copies made from the original by mechanical processes, which ensure and includes accuracy of the copy and also copies made from or compared with the original. Applying the above legal provisions of law to the present case on hand, this court is of the view that Ex.A1 can prima facie be considered as a secondary evidence, since the respondent/plaintiff has specifically pleaded in the plaint itself and has also adduced oral and documentary evidence to putforth his case that, the original of which had been lost by his previous counsel. Hence this court also in the light of decision referred above hereby decides that, there does not exist any legal necessity at present to totally reject Ex.Al as prayed for in the petition and on that ground the present petition is devoid of merits. However in the interest of justice this court is of the considered view that it would be proper to order that the already marked Ex.A1 be considered as a document marked subjected to objection raised on the side of the petitioner/defendant in the suit and the admissibility of the same shall be decided in the final Judgment.