IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No. 322 of 2017 Reserved on:-21.07.2025 Decided on 30th July 2025 Sh. Raj Kumar and another …Petitioners Versus Sh. Milap Chand …Respondent Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge 1Whether approved for reporting? Yes For the petitioners: Mr. Mohan Singh, Advocate. For the respondent: Mr. Vijay Kumar Verma, Advocate. Ajay Mohan Goel, Judge (Oral) By way of this writ petition, the petitioners have challenged order dated 24.04.2017 (Annexure P-7), passed by the Court of learned Civil Judge (Junior Division), Court No.7 Shimla, in terms whereof, an application filed by the petitioners under Section 65 of the Evidence Act for placing secondary evidence on record, has been rejected. 2. I have heard learned counsel for the parties and have also carefully gone through the impugned order as well as other documents on record. 2 3. A perusal of the impugned order demonstrates that learned Court below was pleased to dismiss the application filed by the petitioners by holding that the copy made from a copy can only be led in evidence and can be defined as a secondary evidence, if the said Photostat copy is compared with the original and in the absence of the same, the said Photostat copy cannot be considered as secondary evidence. Learned Court further held that there was nothing on record to show that the Mark-AX, the photocopy of the photocopy, was compared with the original document at any point of time and, therefore, under these circumstances said documents cannot be considered as secondary evidence. 4. In the light of the statutory provisions of Sections 63 and 65 of the Evidence Act, this Court does not finds any infirmity in the impugned order. 5. Section 63 of the Indian Evidence Act, reads as under:- “63. Secondary evidence. –– Secondary evidence means and includes –– (1) certified copies given under the provisions hereinafter contained; (2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies 3 compared with such copies; (3) copies made from or compared with the original; (4) counterparts of documents as against the parties who did not execute them; (5) oral accounts of the contents of a document given by some person who has himself seen it.” Illustrations (a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original. (b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original. (c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original. (d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine-copy of the original, is secondary evidence of the original.” 6. Similarly, Section 65 of the Indian Evidence Act, reads as under:- “65. Cases in which secondary evidence relating to documents 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 reach of, or not subject to, the process of the Court, or of any person legally 4 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; 34 (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 1 [India] 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. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.” 7. Coming back to the facts of the present case, a perusal of the application filed by the petitioners under Section 65 of the Indian Evidence Act demonstrates that the prayer therein was that the petitioners/plaintiffs may be allowed to lead secondary evidence by placing on record a Photostat copy of 5 the agreement executed between the plaintiffs and the defendant dated 07.09.1992. It was averred in the application, which is appended with the petition as Annexure P-5 that at the time of the execution of agreement between the plaintiffs and the defendant on 07.09.1992, in respect of the sale of the suit land vis-à-vis which the suit for specific performance was filed by the plaintiffs, one photocopy of the agreement was made from the judicial paper i.e., carbon copy of the agreement as well as from the stamp paper copy. The photocopies were prepared for the petitioners and non-applicant was in possession of the original copy of agreement. The original copy of agreement dated 07.09.1992 was handed over to the defendant in the presence of the witnesses. Subsequently, defendant manipulated and with an intention to defraud the plaintiffs, he took possession of the carbon copy of the agreement by handing over the photocopy of the agreement to the plaintiffs. It was in this backdrop, that a prayer was made to lead additional evidence. 8. Thus, it is evident from the averments made in the application itself that the payer therein was to place a 6 photocopy of the carbon copy on record and, as nothing was on record to suggest that the ‘Copy’ of which Mark-AX itself was a photocopy was compared with the original document at any time, therefore, no perversity can be attributed to the order under challenge and the learned Court below rightly dismissed the application. Learned Court rightly held that in the given circumstances, permission as was being prayed by the petitioners to lead secondary evidence, could not have been granted, as grant of permission would have been in violation of the permission of Section 65 of the Evidence Act. 9. Accordingly, this petition is dismissed without interfering with the impugned order. Pending miscellaneous applications, if any, also stand disposed of. (Ajay Mohan Goel) Judge July 30, 2025 (Vinod)