1 2025:CGHC:14003 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 246 of 2025  M/s Baldau Traders Through Its Proprietor- Baldau Prasad Rajput, Aged About 54 Years, S/o Shri Bharat Rajput, R/o- Village Ramtala, Tahsil- Pathariya, District- Mungeli (C.G.), Mo. No. 7354480772 ... Petitioner(s) versus 1. Sarpanch Gram Panchayat Piparload, Tahsil- Pathariya, District Mungeli (C.G.) 2. Secretary Gram Panchayat Piparload, Tahsil- Pathariya, District- Mungeli (C.G.) 3. Chief Executive Officer Zila Panchayat Mungeli, District Mungeli (C.G.) 4. Chief Executive Officer Janpad Panchayat Pathariya, District Mungeli (C.G.) ... Respondent(s) For Petitioner : Mr. Ratnesh Agrawal, Advocate Hon’ble Shri Justice Rakesh Mohan Pandey Judgment On Board 24-03-2025 1) The petitioner has filed this petition assailing the order passed by the learned First District Judge, Mungeli (C.G.) in Civil Suit No. 1-B/2023, dated 04.03.2025, whereby an application moved by the petitioner/plaintiff under Section 65 of the Evidence Act, 1872 to lead secondary evidence to prove the contents of an agreement through its xerox copy has been rejected. 2 2) Learned counsel for the petitioner/plaintiff submits that an agreement was entered into between the plaintiff and defendants No. 1 & 2 on 15.11.2020, following which, the plaintiff completed the assigned work but defendants No. 1 and 2 failed to make payment, therefore a civil suit was filed for the recovery of Rs. 12,23,500/-. He further submits that the original agreement dated 15.11.2020 entered into between the parties is in possession of defendants No. 1 and 2, therefore, the plaintiff moved an application under Section 65 of the Act, 1872 to prove the contents of the xerox copy of the agreement by leading secondary evidence but the learned trial Court rejected the application on the ground that the plaintiff cannot be permitted to prove the contents of the xerox copy of the agreement. He contends that the Co-ordinate Bench in WP227 No. 624 of 2018 parties being Bhandari Ram Vs. Kunwar Sai and another held that “no separate application for leading secondary evidence is required to be filed and party seeking to lead secondary evidence is required to comply with conditions enumerated in Section 65 of the Evidence Act”. He further contends that the learned trial Court committed an error of law while rejecting the application, therefore, the order impugned deserves to be set-aside. 3) Heard. 4) In the present case, an application under Section 65 of the Act, 1872 was moved and the same has been rejected. 5) Section 63 of the Act, 1872 deals with secondary evidence and is reproduced herein below for ready reference:- 3 63. Secondary Evidence. Secondary evidence means and includes -(1)[ certified copies given under the provisions hereinafter contained;] [See Section 76,infra.] (2)copies made from the original by the mechanical processes which in themselves insure the accuracy of the copy, and copies 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. A bare reading of this Section would make it clear that the certified copies and the copies made from the original by way of mechanical process may be proved by leading secondary evidence. 6) Section 65 of the Act, 1872 deals with cases in which secondary evidence relating to a document may be given and the same is reproduced herein below for ready reference:- 65. Cases in which secondary evidence relating to document 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 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; 4 (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; (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 [India] [[[Cf. the Bankers'Books Evidence Act, 1891 (18 of 1891), Section 4.]], 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 documents is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of 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) As contended by Mr. Agrawal, the original agreement entered into between the plaintiff and defendants No. 1 and 2 is in possession of defendants No. 1 and 2, therefore, the application was moved to prove its contents by producing a xerox copy of such agreement. 8) In the matter of Bhandari Ram (supra), the co-ordinate Bench while dealing with a similar issue in paras 12 and 13 held as under:- 12. In the matter of Rakesh Mohindra v. Anita Beri and others the Supreme Court has stated the preconditions for leading secondary evidence are that such original documents could not be produced 5 by the party relying upon such documents in spite of best efforts, unable to produce the same which is beyond their control. It was observed as under:- "15. The preconditions for leading secondary evidence are that such original documents could not be produced by the party relying upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the non-production of primary evidence. Unless, it is established that the original documents is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that documentcannot accepted. 20. It is well settled that if a party wishes to lead secondary evidence, the court is obliged to examine the probative value of the document produced in the court or their contents and decide the question of admissibility of a document in secondary evidence. At the same time, the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. It is equally well settled that neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispense with its proof, which is otherwise required to be done in accordance with law." 13. In the light of aforesaid legal position, the impugned order passed by the trial Court is partly set aside and it is held that no separate application for leading secondary evidence is required to be filed and party seeking to lead secondary evidence is required to comply with conditions enumerated in Section 65 of the Evidence Act and would be entitled 6 to lead secondary evidence subject to objection, if any, by other side and adjudication by the trial Court in accordance with law and subject to compliance with Section 65 of the Evidence Act. 9) Taking into consideration the provisions of Sections 63 and 65 of the Act, 1872 and the law laid down by the co-ordinate Bench in the matter of Bhandari Ram (supra), the order passed by the learned trial Court dated 04.03.2025 is hereby set-aside holding that no separate application for leading secondary evidence is required to be filed. The party is required to comply with the conditions enumerated in Sections 63 and 65 of the Act, 1872 and would be entitled to lead secondary evidence subject to objection, if any, by the other side and adjudication by the trial Court in accordance with law. 10) It is expected that the learned trial Court shall decide the issue strictly in accordance with the law, particularly according to the provisions entailed in Sections 63 and 65 of the Act, 1872. 11) It is made clear that this Court has not expressed any opinion on the merits of the document/agreement in question. 12) Accordingly, the instant writ petition stands disposed of. Sd/- (Rakesh Mohan Pandey) JUDGE Ajinkya Digitally signed by AJINKYA PANSARE Date: 2025.03.25 17:53:32 +0530