Telangana High Court
Md Isamuddin vs Jani Miya And Another on 1 July, 2026
HIGH COURT FOR THE STATE OF TELANGANA AT
HYDERABAD
THE HON'BLE SRI JUSTICE VAKITI RAMAKRISHNA REDDY
CIVIL REVISION PETITION No.3940 of 2015
Date: 01.07.2026
Between:
Mohd. Isamuddin and others .... Petitioners
AND
Jani Miya and others .... Respondents
ORDER:
Heard Sri N. Manohar, learned counsel appearing for the
petitioners and Sri A. Sanjeeva Reddy, learned counsel
appearing for the respondents. Perused the material available on
the record.
2. This Civil Revision Petition is directed against the order
dated 14.08.2015 (hereinafter referred to as “the impugned
order”) passed by the learned Junior Civil Judge, at Zaheerabad
in I.A.No.489 of 2012 in O.S.No.107 of 2009. By the impugned
order, the learned Trial Court allowed the said application filed
by the respondent No.1/plaintiff under Section 65 of the Indian
Evidence Act, 1872 read with Section 151 of the Code of Civil
Procedure, 1908, thereby permitted him to adduce the Photostat
copy of alleged affidavit dated 26.08.2004 purportedly filed by
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the petitioner/defendant No.2 before the Mandal Revenue
Officer, Zaheerabad, as secondary evidence.
I. BRIEF FACTS
3. The factual backdrop to the present revision is as follows:
a) The respondent No.1/plaintiff filed O.S.No.107 of 2009
before the learned Junior Civil Judge, Zaheerabad, seeking a
declaration that he is the owner of suit schedule property i.e.,
agricultural land admeasuring Ac.2.10 guntas situated in Sy.
No.93 of Huggeli Village, Zaheerabad. In support of his claim the
respondent No.1/plaintiff filed a Photostat copy of an affidavit
purportedly filed by the petitioner/defendant No.2 on 26.08.2004
before the MRO, Zaheerabad, for obtaining the certified copies of
Record of Rights (ROR) for the years 1979-80 and 1989-90 and
Pahani Patraks.
b) The respondent No.1/plaintiff thereafter filed an application
vide I.A. No.489 of 2012 in O.S. No.107 of 2009 under Section 65
of the Indian Evidence Act, 1872 r/w. Section 151 of the Code of
Civil Procedure, 1908, seeking permission of the court to receive
the said Photostat copy as secondary evidence, on the ground that
the respondent No.1/plaintiff had filed a petition before the
Tahsildar, Zaheerabad for obtaining the certified copy of the alleged
affidavit. The Tahsildar, vide proceedings dated 04.10.2012,
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informed that the concerned file had been closed under L-Dis,
within the period 2004-05, and that a certified copy could not be
issued.
c) The petitioner/defendant No.2 filed a counter opposing the
said application and mainly contended that he did not file any
such affidavit before the MRO, Zaheerabad, as such, the petition is
devoid of merits and liable to be dismissed.
d) The learned Trial Court, by the impugned order dated
14.08.2015, allowed the said application on the ground that
original affidavit has been destroyed in the office of the MRO and
that as mere marking does not prove its contents and that the
petitioner/defendant No.2 can cross-examine on it. Aggrieved
thereby, the petitioner/defendant No.2 has preferred the present
Civil Revision Petition.
II. SUBMISSIONS OF THE PARTIES:
a) Submissions on behalf of petitioners/defendants Nos.2:
4. Learned counsel for the petitioners respectfully submits that
the learned Trial Court committed a grave error in permitting the
respondent No.1 to mark a Photostat copy of the alleged affidavit
dated 26.08.2004 as secondary evidence under Section 65 of the
Indian Evidence Act. It is further contended that the respondents
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CRP_3940_2015failed to establish the source, custody, and authenticity of the said
document and did not lay the necessary foundation required under
Sections 63 and 65 of the Evidence Act. In the absence of proof
regarding the existence and execution of the original document, the
Photostat copy ought not to have been received in evidence.
5. It is further submitted that petitioner has consistently denied
filing any such affidavit before the Mandal Revenue Officer,
Zaheerabad, and has specifically contended that the alleged
Photostat copy is a concocted document. When the very existence
and execution of the original document are seriously disputed, the
learned Trial Court ought not to have permitted secondary evidence
merely on the basis of a plea that the original document was not
available.
6. It is further contended that the learned Trial Court failed to
appreciate that secondary evidence can be admitted only after
strict compliance with the statutory requirements governing its
admissibility. The respondent No.1 neither proved that the
Photostat copy was prepared from the original by a reliable
mechanical process nor established that it was compared with the
original. Further, the proceedings of the Tahsildar do not
conclusively show that the original record was destroyed or
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CRP_3940_2015unavailable, thereby rendering the conditions prescribed under
Section 65 of the Evidence Act, unsatisfied.
7. Therefore, the impugned order dated 14.08.2015 is contrary
to law and the settled principles governing admissibility of
secondary evidence. The same has caused serious prejudice to the
petitioner and is liable to be set aside by this Court by allowing the
present Civil Revision Petition with costs.
8. The learned counsel for the petitioners placed reliance upon
the decision of the Hon’ble Supreme Court in Smt. J. Yashoda v.
Smt. K. Shobha Rani 1, wherein it was observed that, as a general
rule, secondary evidence is admissible only when primary evidence
is unavailable and its non-production is satisfactorily explained. It
was further held that a party, who fails to prove the validity of the
original document cannot subsequently rely on secondary evidence
of its contents. Section 63 of the Indian Evidence Act exhaustively
defines secondary evidence, while Section 64 requires documents
to be proved by primary evidence. Section 65 permits secondary
evidence only in specified circumstances and upon proof of the
existence and due execution of the original document. Accordingly,
secondary evidence of a document’s contents is inadmissible
1 (2007) 5 SCC 730
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unless the non-production of the original is duly accounted for in
accordance with the conditions prescribed under Section 65.
b) Submissions on behalf of the respondent no.1/plaintiff:
9. Per contra, the learned counsel for the respondents
submitted that they had relied upon a Photostat copy of an
affidavit allegedly filed by the petitioner before the M.R.O.,
Zaheerabad, on 26.08.2004 for obtaining certified copies of the
R.O.R. for the years 1979-80 and 1989-90 and Pahani Patraks,
and has sought to treat the same as containing an admission
regarding the ownership of the petitioner’s father over the suit land
bearing Sy. No. 93 situated at Huggeli Village, Zaheerabad Revenue
Mandal. It is further contended that the respondents submitted an
application to the Tahsildar, Zaheerabad, for issuance of a certified
copy of the said affidavit. However, by proceedings dated
04.10.2012, the Tahsildar informed that the relevant file had
already been closed and disposed of under L-Dis during the period
2004-2005 and, therefore, the certified copy could not be
furnished.
10. The learned counsel for the respondents placed reliance on
the decision in Smt. Sattamma and Others v. Ch. Bhikshapati Goud,
Ch. Bhupal Goud and Others 2, wherein it was held that at the stage
2 2010 SCC OnLine AP 256
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of seeking permission to lead secondary evidence, a vague
statement of the person on affidavit that the document was lost
would be sufficient to permit leading of secondary evidence, and
that the Court is entitled to reject any document, which is
irrelevant and inadmissible at any stage of the case. Reliance was
also placed on E. Satyanarayana Reddy v. Ch. Muralidhar Reddy 3,
wherein it was held that refusing permission to lead secondary
evidence at the threshold on the ground that there is no factual
foundation in the pleadings cannot be sustained, and that the
merits and demerits, the truth or otherwise and the validity of the
documents may be gone into at the appropriate stage.
III. POINT FOR CONSIDERATION:
11. Having considered the rival submissions advanced on either
side and the material on record, this Court deems it appropriate to
frame the following point for consideration:
“Whether the order dated 14.08.2015 passed in
I.A.No.489 of 2012 in O.S.No.107 of 2009 by the
learned Junior Civil Judge, Zaheerabad, permitting the
respondent No.1/plaintiff to receive the Photostat copy
of the alleged affidavit dated 26.08.2004 as secondary
evidence under Section 65 of the Indian Evidence Act,
1872, warrants interference by this Court?”
3 2010 SCC OnLine AP 498
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IV. ANALYSIS:
12. Before proceeding, it is necessary to set out the applicable
statutory provisions on the subject of secondary evidence.
“Section 63 Secondary evidence means and includes
— (1) certified copies given under the provisions hereinafter
contained; (2) copies made from the original by mechanical
processes which in themselves ensure 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.”
13. Section 65 of the Evidence Act specifies the circumstances in
which secondary evidence relating to documents may be given.
Clause (c) thereof, which is most immediately relevant, provides
that secondary evidence may be given 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.’ In cases falling
under clauses (a), (c) and (d), any secondary evidence of the
contents of the document is admissible.
14. In the present case, the respondent No.1 has placed on
record the proceedings of the Tahsildar, Zaheerabad, dated
04.10.2012, in C.C.No./Record/2012, communicating that the file
pertaining to the affidavit filed by the petitioner/defendant No.2
before the MRO, Zaheerabad, has been closed under “L-Dis” and
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was disposed of within the period 2004-05, and that a certified
copy thereof could not be supplied. These proceedings constitute a
prima facie documentary foundation for the claim that the original
affidavit is no longer available in the office of the MRO. The
proceedings of a government authority communicating the non-
availability of a record on account of administrative disposal
cannot be lightly brushed aside. This is not a case, where the
respondent No.1 has produced a Photostat copy in a vacuum
without any explanation; there is a specific government
communication explaining why the certified copy could not be
obtained. Section 65(c) does not require a party to establish
physical destruction; it is equally satisfied where the original
‘cannot, for any other reason not arising from his own default or
neglect, be produced in reasonable time.’ The unavailability of the
file after being disposed of under L-Dis squarely satisfies this limb
of Section 65(c).
14.1. This Court in Sattamma’s case (supra) conclusively puts this
issue to rest and held as under:
“So, the party must show that, in good faith, he has
exhausted reasonable source of information and means of
discovery which the nature of the case would naturally
suggest. Loss can never be proved absolutely and evidence
regarding loss of the document by the person in whose
custody the document ought to be, is yet to be established
during trial. But, at this stage, a bare statement of person
required to file document on affidavit that the document was
lost, would be sufficient to permit to lead secondary
evidence.”
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15. The respondent No.1 here has gone beyond a bare statement
he has placed on record the official proceedings of the Tahsildar
confirming that the file is no longer available and a certified copy
cannot be supplied. This is a stronger foundation than a bare
averment in an affidavit and it satisfies the threshold requirement
at the interlocutory stage.
16. As regards the contention that the petitioner has specifically
denied the execution of the original affidavit, this Court is of the
considered view that a mere denial of the existence or execution of
a document by the opposite party cannot, by itself, constitute a
valid ground for refusing permission to adduce secondary evidence
at the threshold. If such contentions were accepted, a party
disputing the execution of a document could effectively preclude
the other side from even attempting to prove its contents merely by
denying its existence in response to an application under Section
65 of the Evidence Act. Such an interpretation would defeat the
very purpose underlying Section 65 and result in manifest
injustice. The truthfulness of the denial and the authenticity,
genuineness of the document are matters that fall within the area
of trial and must be adjudicated upon after the parties have had an
opportunity to lead evidence in support of their respective stands.
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17. The Hon’ble Supreme Court observed in Rakesh Mohindra v.
Anita Beri 4 as under:
“We make it clear that mere admission of secondary
evidence, does not amount to its proof. The genuineness,
correctness and existence of the document shall have to be
established during the trial and the trial court shall record the
reasons before relying on those secondary evidences.”
18. The denial of execution of such an affidavit by the
respondent is a matter for the learned trial Court to consider with
all the evidence placed before it. It is not a ground to shut out the
plaintiff’s evidence at the threshold. The defendants are adequately
protected as they can lead evidence to rebut the said document, by
virtue of cross-examination.
19. The defendant urged that the plaintiff’s failure to explain the
source from which he obtained the Photostat copy is fatal to the
application. However, at the interlocutory stage, the failure to
disclose the source does not by itself justify rejection of the
application. The source is a matter to be established during trial.
The trial Court correctly observed in this regard that a Photostat
copy of a document can be obtained through several means.
Whether the manner of obtaining the Photostat copy was proper,
and whether the copy faithfully reflects the original, if an original
existed, are questions that can only be answered after evidence is
led. As held in Sattamma’s case (supra), whether the Photostat
4
(2016) 16 SCC 483
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copy satisfies the requirements of Section 63(3) of the Act by being
a copy made from, or compared with, the original, is itself a matter
to be established through evidence and cannot ordinarily be
conclusively adjudicated at the stage of deciding an interlocutory
application under Section 65 of the Act.
V. CONCLUSION:
20. In view of the above discussion, this Court is of the
considered view that the petitioner/defendant failed to establish
any of the grounds to set aside the impugned order, which is in
proper perspective. Thus, the Civil Revision Petition is devoid of
merits and accordingly liable to be dismissed.
VI. RESULT
21. Accordingly, the Civil Revision Petition is dismissed. In the
facts and circumstances of the case, there shall be no order as to
costs.
22. As a sequel, all pending miscellaneous applications, if any,
shall stand closed.
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VAKITI RAMAKRISHNA REDDY, J
Date: 01.07.2026
AS
