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Report No. 69

VI. Clauses (d) to (g)

30.21. Section 65(d).-

Under section 65(d), secondary evidence may be given where the original is of such a nature as not to be easily moveable. The usual illustrations of this clause are inscriptions on walls and fixed tablets, murals, monuments, grave-stones, notices fixed on boards and the like1. Documents in foreign countries, though not falling under clause (d), would fall either under clause (a) or clause (c). No changes are needed in this clause.

1. Woodroffe.

30.22. Section 65(e).-

Section 65(e) permits secondary evidence to be given where the original is a public document within the meaning of section 74. In this case, a certified copy is admissible. But if there is a case for giving secondary evidence under some other clause of section 65, such as, clause (d), then the type of secondary evidence mentioned in that clause also applies1. We have already discussed this point. No changes are needed in this clause on any other point.

1. See discussion as to how far various clauses of section 65 are mutually exclusive; supra.

30.23. Section 65(f).-

There is another situation in which certified copies can be given in evidence. Section 65(f) permits secondary evidence to be given, in the case of a document of which a certified copy is permitted by the Evidence Act or by any other law in force in India to be given in evidence. The words "to be given in evidence" mean "to be given in evidence in the first instance without having been introduced by other evidence"1. No changes are suggested in this clause.

1. Hurrish v. Prosunno, (1874) 22 WR 303 (Cal).

30.24. Section 65(g).-

Section 65(g) permits secondary evidence to be given in the case of originals consisting 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. It would appear that even where the documents are public documents, this clause would apply1, if the fact to be proved is their general result.

1. Sundar Kuar v. Chandreshwar, 1907 ILR 34 Cal 293 (297) (Harrington and Geidt, JJ.).

30.25. It may be noted that clause (g) is an addition1 to the categories of secondary evidence enumerated in section 63. We have no further comments on this clause.

1. See discussion as to section 63, supra.

VII. Recommendation

30.26. Recommendation to amend clauses (a) and (c).-

The recommendations made in the above discussion may now be summarised.

(a) As regards persons legally bound to produce the document, section 65(a) may remain as it is.

(b) In section 65(a), a verbal change should be made, to bring it in harmony with section 66. This can be achieved by inserting, in section 65(a), after the figure "66", the words "where such notice is necessary."

(c) In clause (a), for the words "after the notice mentioned in section 66" the words "when any person in whose possession or power the original may be, does not, after receiving the notice (if any) required by section 66, produce such original" should be substituted.

(d) As regards persons not legally bound to produce the document, the situation should be expressly included in section 65(c), by an amendment.

(e) It should be made clear that the clauses are not mutually exclusive. In the sentence-"In case (e) or (f) a certified copy, but no other kind of secondary evidence is admissible" the words "unless some other clause of this section applies" should be added for the purpose.

Section 66

30.27. Section 66 provides that 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.

30.28. Under the proviso to the section, such notice shall not be required in Order to render secondary evidence admissible in any of the following cases, or in am 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."

30.29. The object of requiring notice under section 66 is to give opposite party a sufficient opportunity to produce the document, and thereby to secure. if he pleases, the best evidence of its contents. Notice to produce also excludes the argument that the opponent has not taken all reasonable means to secure the original.1

No changes are needed in the section.

No changes are needed in the section.

1. Woodroffe.

Indian Evidence Act, 1872 Back

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