- (1.) The revision is against an order rejecting an application for reception of secondary evidence of registration copy of mortgage executed between third parties. Originally, it appears that similar application had been filed but rejected on the ground that the procedure which required under law had not been followed for tendering secondary evidence. The objection by the defendant also was that the trial has commenced and examination of the witnesses on the side of plaintiff and defendant had been completed and when the case was posted for rebuttal evidence, this application had been filed seeking for reception of the secondary evidence.
(2.) The trial Court dismissed the petition on two grounds namely that an earlier application seeking for a similar relief was rejected and therefore, the present petition could not be filed. The Court was also accepting contention that the document itself was irrelevant and therefore, would not be received in evidence.
(3.) If the production of secondary evidence is brought under the circumstances, which could be justified for a ground mentioned under Section 65 of the Indian Evidence Act, the rule as to notice to produce, which Section 66 contemplates is as under:- "66. 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; (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. It would be applicable in a case where the notices shown to be in the possession and in power of a particular person against whom the document is sought to be proved and a notice is given under Section 66 of the Indian Evidence Act. If registration copy of the document is sought to be proved not against a defendant and any of the recitals in the registration copy are sought to be relied on and when the plaintiff declares that the original document is not with him, there is not even a need for a person to file an application for reception of secondary evidence. It is essentially a matter of evidence, which will be tested in the cross-examination of a person, who tenders the document. A mere tendering of document cannot amount to proof of the document itself. If a registration copy is produced by a person, who was not himself a privy to the document, then the person, who is aware of the same shall be called as a witness for exhibiting a document in evidence. When, therefore, a petition was filed for reception of secondary evidence after serving notice of production at a party, which is purported to have in his custody, the same should be allowed and at the time of exhibiting a document in evidence, the Court shall apply sufficient circumspection to see that the normal rules of evidence namely a person, who is competent to speak about the document is examined before tendering his evidence. If the plaintiff himself was not a party nor even defendant was a party, the plaintiff shall be compelled to produce in evidence a person, who is in some way associated with the document, who has knowledge of the document through whom the document could be exhibited in evidence. This is the only action, which is necessary to be followed and it is irrelevant that on earlier occasion, application for reception of secondary evidence was rejected. If the ground of rejection was that the basis for production of secondary evidence had not been adduced and the plaintiffs seek to produce that basis by a subsequent application, the principle of res judicata will not even apply, for it is not a matter which finally adjudicates the rights of party. It is essentially a matter of evidence which shall be brought at the appropriate time. ;