Rules as to notice to produce:
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:
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ADVERTISEMENTS:
Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any 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;
ADVERTISEMENTS:
(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.
Comments:
ADVERTISEMENTS:
Principle:
Secondary evidence of the contents of document under section 65 is not allowed unless “not to produce” notice is first given. Section 66 has laid down the conditions under which the notice can be given. It requires that notice must be given to the opposite party or somebody who is in possession of original document under section 65(a). The notice must be in writing and to be given to produce the original, and if the opposite party fails to comply with the notice, secondary evidence will be admissible to prove the contents of the document.
If no notice is given secondary evidence cannot be admissible unless it is otherwise provided when the plaintiff’s attorney admitted that he had the original promissory note with him, in an action of promissory note the secondary evidence of its contents was allowed. Secondary evidence can be permitted to be adduced only after non-production of primary evidence is satisfactorily accounted for, or can be filed only after notice under section 66 is given.
The main purpose of notice is to give an opportunity to the opposition party to produce the original before admitting secondary evidence. If the opposite party fails to produce the original after having received notice, he cannot produce the original in the latter stage of proceeding. The person in whose possession the required document is himself or herself a party to the suit cannot be a ground for giving notice to produce.
When notice is not necessary:
Proviso to Section 66 enumerates six cases where no notice is required for admission of secondary evidence in the following:
1. When a document itself is a notice:
When a document to be proved is itself a notice which has already been given to the adverse party, then no notice is further required to be served for admission of secondary evidence. Where defendant refused to produce original rent note which was in’ his possession, and the plaintiff sought to produce secondary evidence but the trial court rejected it, the Supreme Court held that the plaintiff should be allowed to produce the secondary evidence and then the court may pronounce on its veracity.
2. When the opposite party knows that he is bound to produce it:
When the adverse party knows that he will be required to produce the original or that he will be charged with the possession of the instrument by the plaintiff, secondary evidence is admissible without giving him notice. Where the defendant mortgagee was in possession of original mortgage deed refused to produced it before the court, a certified copy of the deed was allowed to be produced.
In an action of redemption of a mortgage when the mortgagee in possession of mortgage deed and fails to produce it before the court, the mortgagor can have right to produce certified copy of the deed.
3. When the adverse party has obtained original by fraud or force:
No notice is required to be served when it appears or is proved that the adverse party has obtained the original document by fraud or by force.
4. When the adverse party has the original in the court. Notice to produce the original is not necessary when it is proved that the adverse party or his agent, like solicitor or vakil, has the original instrument in court. When the original instrument is in the court room in opponents ‘possession an instant demand is sufficient.’
5. When the adverse party has admitted the loss:
The notice is not required to be necessary when the adverse party or his agent had admitted that the original instrument which was in his possession, has been lost or destroyed. It is a case of admission by the opponent that presently he is not in possession of the instrument and no notice is necessary. Secondary evidence is to be admitted.
6. When the person in possession is out of the jurisdiction of the court:
When the person in possession of the original document is out of the jurisdiction of the court and not subject to the court, secondary evidence is admissible without serving any notice.
Procedure of serving notice:
Section 66 deals with the rule of serving notice when secondary evidence of contents of a document is required to be produced. It has also provided exceptions when secondary evidence is admissible without notice. In some specific cases the court has power to dispense with the notice if it thinks fit.
Before secondary evidence of documents mentioned in clause (a) of Section 65 may be given it is essential that the procedure in Section 66 should be strictly complied with. “The notice must not only be in writing, but, so far as civil proceedings are concerned, must be in special form directed by the Rules of court”.
Application of rule in criminal cases:
Admission of the secondary evidence is the same in criminal cases as that of civil cases. Sections 91, 94, 230,233(2), 242(2), 243(2), 254(1) and 349 of the Cr. P.C. deal with the procedures for production of documents in criminal cases. In civil matters procedures laid down in various provisions are followed.