Justice Rajiv Sahai Endlaw in a recent unreported Judgment has dealt with the power of the Court with relation to permitting a party to a civil suit to file only photocopy of the document and exempt such party from placing the original document on the file of the court and merely to give inspection thereof to the opposite party at the time of admission/denial of documents and at the time of tendering the document into evidence and to put the Exhibit mark again on photocopy on the file of the court.
While discussing the advancement of science and technology, the Court held;
7. At the outset, I must state that, to hold that there is no power whatsoever in the court to exempt placing of the original document on the file of the court on the condition of the party offering the same for inspection in the court as and when required, is not found by me to be in consonance with the principles of convenience and expediency and with the times. The courts, increase in number whereof has not kept pace with the increase in population and development of trade and commerce which also leads to increase in litigation, are today over loaded and facing a crunch not only of manpower but also of shere physical space and infrastructure. The court buildings/premises/infrastructure which were built and designed for a certain volume of litigation, are falling far short of the number of legal cases transacted therein. The persons handling the court files and/or the papers filed in the court work under tremendous time constraints and pressure and cannot be expected to take care or safety and preservation of the papers in the court file, as one would of his own. The papers filed, for being retained on the court file are punched not once or twice but several times. Often the papers are found to come loose from the court file and/or on repeated handling with torn corners. The documents which may be required to be filed in a lis may not merely be magazines or invoices as in this case but may be title documents to the immovable properties of the parties or of financial investments of the parties or as to educational qualifications/experience of parties and which may be irreplaceable qua the parties and loss/damages whereto may depreciate the value of the property/financial investments of the parties. The question posed above has to be adjudicated keeping all the said factors in mind and not merely the documents in the present case.
8. The courts today have undertaken an e-project, the vision whereof is a paper less court. Of course, the same is still a far cry. However, that being the vision, the law must evolve in consonance therewith and not to create impediments/obstacles in the same. In many countries, the filing of lis/claims in the court is through electronic media only without the advocate or the litigant physically visiting the court or filing a single paper therein. All this is not possible if insistence is made on filing of the original documents. It is possible today to scan the document and e-file it with the court and to simultaneously serve it on the opposing parties.
9. I am, therefore, of the view that if the provisions of the codified law so permit, it would be expedient to, where the court finds that the original document is such, the loss or damage whereto could cause irreparable loss or inconvenience to a litigant, to allow such original to remain in the safety of its owner/possessor and to allow filing of photocopy thereof only, with a condition on the party to produce the original for inspection as and when required.
10. Yet another reason which prevailed on me for even before considering the provisions of law find the aforesaid to be more reasonable, was the advancement in science and technology which today allows the photocopy of the original to be as good/clear as the original, if not clearer. A number of times, it is difficult to distinguish between the original and the photocopy. Gone are the times when copies of the original were made manually either in hand or in type with inherent possibility of differences between the two. In those times, seeing the copy could not be the same as seeing the original. One could not have the impact of seeing the original by seeing such a copy. However, the process of photocopying has changed all that. The ocular inspection of a photocopy of a document is as good as of the original. The laws which were drafted in those times have to be interpreted in consonance with the present times and technology.
While discussing the relevant provisions of law, the Court observed that;
20. The next questions which arise are, as to whether under Order 13 Rule 1 of the CPC the original document has to be placed on the file of the court or to be merely given inspection of for admission/denial of documents; whether the Evidence Act while providing for proof of documents by primary evidence requires filing/placing of the original document on the record of the court.
21. There can be no manner of doubt that the Evidence Act providing in Section 64 thereof of proof of documents by primary evidence only means proof of the original document. Even though Section 62 defining the primary evidence as meaning the document itself, does not state original document but since Section 63 while defining secondary evidence includes "copies from the original" and "copies made from and compared with the original" it necessarily follows that only the original is primary evidence.
22. However, most importantly, Section 62 is as under:
62. Primary Evidence - Primary evidence means the document itself produced for the inspection of the court.
Thus even at the stage of proof, the requirement is only for production of the original for inspection of the court and not of filing of the original in the court. It cannot be argued that production for inspection of the court has to be necessarily by placing it on the file of the court. It can also be by producing it as and when directed by the court for inspection thereof.
23. When at the stage of proof of documents, the requirement under Section 62 of the Evidence Act is only of production of original for inspection of the court, Order 13 Rule 1 of the CPC requiring production of originals has to be necessarily meant as production of original for inspection of the court and not as filing of the original. Significantly, Order 13 Rule 1 also uses both expressions "produce" in connection with original and "filed" in connection with the copies. The different expression used, together with definition/meaning of produce cited by Counsel for plaintiffs also lend me to hold that the original documents are only intended to be produced i.e. to be given inspection of while the copies are to be filed.
24. I, therefore, find that the scheme of the aforesaid legislative provisions also permits production of originals for inspection only and filing of copies only.
25. However, Order 13 Rule 4 CPC and the practise directions in the trial of suits issued by this court, also provide for making of endorsement on documents admitted in evidence. The document which is admitted in evidence is the primary document i.e. the original. Is the endorsement of exhibit mark to be made on original only which would again mean placing it on court record? In my view No. These provisions are procedural. When the substantive law permits only production for inspection of original, once that has been done, the endorsement/exhibit mark can be put on copy on court record also.
26. The aforesaid should not be understood as laying down that in all cases the filing of photocopies is enough. If the document is doubtful or for any other reason required by the court to remain in original on the file of the court, the court can always direct so and a party cannot insist on filing of copy only. There may be other instances where filing of the original is necessary, as in the case of documents like Will, Agreements which may be terminated/cancelled by destruction. The courts can in such cases insist upon the original being filed on the record.
27. I, therefore, answer the question posed by me in opening paragraph in the affirmative and in law there is no impediment to granting the application.
28. The next question is whether in the facts and circumstances of the present case the application should be granted. Though the arguments of the Counsel for the defendant of it being possible to file magazines/article in original in as much as several copies of the same can be available is attractive but impractical. In the normal course, a litigant may not retain a large number of copies of the magazines/articles and may retain a single or a few copies only for future use. It is very difficult for a litigant to long after the date of publication approach the publisher for other copies of the newspapers, magazines and articles. The same is the position of the invoices. The various laws i.e. the Income Tax Laws and the Companies Act provide for the duration for which the records are to be preserved. The parties may beyond the said terms retain a few/sample records for further use. It thus cannot be said that same invoices can be filed in each court.
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