Facts of the Case

• The Plaintiff filed a civil suit and sought to rely on a mortgage deed to establish his claim.
• Instead of producing the original mortgage deed, the Plaintiff produced only a xerox (photocopy) of the document.
• The Defendant objected to the admissibility of the photocopy, arguing that only the original document can be proved under the Best Evidence Rule.
• The Plaintiff argued that the original deed was unavailable and therefore the photocopy should be accepted as secondary evidence.
• The Court is required to decide whether the xerox copy can be accepted as secondary evidence under the Indian Evidence Act, 1872.

Issues of the Case

1. Whether a xerox (photocopy) of the original mortgage deed is admissible as evidence in a civil trial.
2. Whether photocopies are recognized as secondary evidence under the Indian Evidence Act.
3. What conditions must be satisfied before secondary evidence can be admitted in place of the original.
4. Whether the Plaintiff has established the loss, destruction, or unavailability of the original mortgage deed.

Legal Principles Covered

A. Sections 61 to 65 of the Indian Evidence Act

Section 61 – Proof of Contents of Documents

Documents may be proved either by primary evidence or by secondary evidence when permitted.

Section 62 – Primary Evidence

Primary evidence means the original document itself.
The original mortgage deed is primary evidence and ordinarily must be produced.

Section 63 – Secondary Evidence

Secondary evidence includes:

• Certified copies
• Copies made from the original by mechanical process (including xerox/photocopies)
• Oral accounts of contents by persons who have seen the original

A xerox copy qualifies as secondary evidence.

Section 65 – Cases in Which Secondary Evidence May Be Given

A xerox copy can be admitted only under certain conditions:

1. When the original is lost or destroyed (Section 65(c))
   The party must prove the existence of the original and the fact of its loss or destruction.
2. When the original is in possession of the opposite party (Section 65(a))
   The Plaintiff must give a notice to produce under Section 66, and if the Defendant refuses, secondary evidence becomes admissible.
3. When the original is in possession of a third party not subject to the Court’s jurisdiction.
4. When the original is a public document (Section 65(e))
   In this case, certified copies must be produced, not ordinary xerox copies.
5. When the original consists of numerous documents and a summary is permitted (Section 65(g)).

Relevant Case Law

H. Siddiqui v. A. Ramalingam (2011) 4 SCC 240

The Supreme Court held that photocopies are admissible only if the foundational facts for secondary evidence (such as loss of original) are established.

Smt. J. Yashoda v. K. Shobha Rani (2007) 5 SCC 730

Secondary evidence cannot be accepted unless non-production of the original is satisfactorily proved.

Ashok Dulichand v. Madahavlal (1975 SC)

A photostat copy cannot be admitted unless the provisions of Section 65 are strictly complied with.

Possible Judgement

The Court is likely to hold:

• A xerox copy of a mortgage deed is secondary evidence.
• It can be admitted only when the Plaintiff proves the foundational facts, namely:
  1. The original existed,
  2. The original has been lost or is otherwise unavailable without fault,
  3. Notice to produce the original was given (if applicable).

If these conditions are met, the xerox copy is admissible under Section 65(a) or 65(c).
However, admission of the xerox copy does not itself prove the contents or execution of the mortgage deed. These must still be established by independent evidence.

If the Plaintiff fails to prove the unavailability or loss of the original, the xerox copy will not be admissible.

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