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Report No. 69

Section 65

I. Introductory

30.3. Introductory.-

While the general rule prohibiting secondary evidence of a document is stated in section 64, section 65 states, the exceptional cases in which secondary evidence is admissible.

30.4. We shall deal later in detail with the various exceptions. For the present, it will be sufficient to state that the exceptions contained in the various clauses of section 65 deal with cases where production of the original document is likely to create certain legal or physical difficulties or inconvenience. In some cases, the difficulty almost amounts to an impossibility. Clauses (a) and (c.- as also to some extent, clauses (e) and (f) relating to public document.- deal with legal or physical impossibility, while clauses (d) and (g) deal with physical difficulty or inconvenience.

Clause (b) stands by itself; it relates to written admissions of the existence condition or contents of the document, and is really a case where production of the original is not insisted on, there being reliable evidence which, in addition, has been supplied by a party in a form which ought to be admissible as against him. It may also be noted that under clause (g), what is admitted in substitution for the originals is the general result as stated by a person who has examined the originals and who is skilled in their examination.

II. Whether Clauses Mutually Exclusive

30.5. Clause not mutually exclusive.-

It must be noted, at the outset, that the various clauses of section 65 are not mutually exclusive. If, for example, a case falls under clause (a), then secondary evidence is admissible, even if the conditions of clause (e) or clause (f) are not satisfied. Thus, though, in case (e) or (f) (public documents etc.) only a certified copy is admissible, this express restriction, which is relevant to clause (e) or (f), does not bar the production of other type of secondary evidence of that document where some other clause of the section applies; e.g., where the original document is lost. One would have thought that this is fairly clear from the scheme of the section, but it seems that a different view was urged on this point1 in the past, thought the attempt failed.

1. (a) Kunneth v. Vayoth, 1882 ILR 6 Mad 80 (81), Urines and Kinderaley, JJ.).

(b) Collision (in re:), 1879 ILR 5 Cal 568 (Wilson, J.) (Argument of Woodroffe not accepted).

(c) Sunder v. Chandreshwar, 1907 ILR 34 Cal 293 (297) (Harington & Geidt, JJ.) (Argument of Mr. Hill not accepted).

30.6. It appears that the obscurity is primarily due to the negative and exclusionary words employed in the section, where it provides:

"In case (e) or (f) a certified copy, but not other kind of secondary evidence, is admissible."

30.7. Recommendation to add certain words to make it clear that the clauses are not mutually exclusive.-

To this sentence, it would be desirable to add the words "unless some other clause of this section applies." We recommend this amendment, in order to make the language of the section conform to what is intended and what has been its judicial construction1.

We shall now deal with the points relating to particular clauses of the section.

1. To be carried out in section 65 at the appropriate place.

Indian Evidence Act, 1872 Back

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