Can a Xerox copy prove a disputed document? High Court sets strict test

The original was missing. The other side said it never existed. The court had to decide: can a Xerox copy stand in for a document that might be a ghost?

In a dispute over property, the original document is king. But when the king vanishes, and only a photocopy remains, what then? The Andhra Pradesh High Court confronted this question in Suddapalli Lakshmi Saroja v. Vishnu Botla Murali Krishna and others. Its answer carries a stern warning for every litigant who tries to prove a case with a Xerox.

The courtroom was quiet except for the rustle of paper. On the judge's desk lay a single Xerox copy — its edges curled, the toner slightly smudged. The respondent's lawyer stood up and said: "My Lord, this Xerox is a forgery. The original never existed." The petitioner's counsel held up the copy. "It exists. It was lost. This is all we have." The court had to decide: could a mechanical reproduction stand in for a document that might be a ghost?

When the original goes missing

Every civil trial begins with documents. A sale deed, a will, a promissory note — these are the bones of a case. But documents get lost. Misplaced in a move. Destroyed in a flood. Vanished from a lawyer's file. When that happens, the law allows a party to bring in secondary evidence (a copy, a photograph, or a witness's testimony about the document's contents) instead of the original.

Sections 63 and 65 of the Indian Evidence Act govern this. Section 63 defines what counts as secondary evidence — a Xerox copy is on the list. Section 65 lays down the conditions under which a court may receive that copy. The idea is simple: if the original is genuinely lost, a copy can step in. But the High Court saw a problem. What if the other side says the original never existed at all?

The petitioner's lawyer gestured toward the photocopy on the desk. "My client signed this Will. The original was kept in a safe. It disappeared during a house renovation. We have the Xerox — that is enough." The respondent's lawyer shook his head. "There was no Will. This copy was created last week. You cannot prove a document that never existed." The courtroom fell silent. The judge picked up the Xerox, held it to the light, and set it down again. The law demanded an answer.

"The original is a ghost"

The Court drew a sharp line. If both sides agree the original existed — they just cannot find it — admitting a Xerox copy is straightforward. The judge looks at the copy, hears the explanation, and moves on. But when the other party seriously disputes the very existence or execution of the original, the game changes entirely.

"Where however, the parties seriously dispute the very existence of the original, of which, the secondary evidence is sought to be adduced," the Court observed, "thorough scrutiny and verification are to be undertaken."

This is not a mere procedural formality. It is a constitutional safeguard. If a court accepts a Xerox of a document whose existence is hotly contested, it risks building an entire judgment on sand. The party relying on the copy must lay the foundation — a legal term that means proving, step by step, that the original existed, what it contained, and why it is no longer available.

The judge leaned forward. "Mr. Counsel, you say the original is lost. But the other side says it never existed. How do I know which story is true?" The petitioner's lawyer opened a thin file. "My Lord, we have the Xerox. We have a witness who saw the original. We have the circumstances of its loss." The judge picked up the file. It felt light — too light for a case that rested on a single piece of paper. "Then let us examine each piece," the judge said.

What 'laying the foundation' actually means

The High Court drew on a Supreme Court precedent, Sitaldas v. Santram, to explain what this foundation must look like. It is not enough to say, "The original is lost." The party must provide:

• The contents of the document
• The name of the person who wrote it (the scribe)
• The names of the persons who attested it (witnesses who signed it)
• The details of the person who had possession of the document immediately before it was lost

If the document requires attestation — like a Will — the party must also examine the attesting witnesses under Sections 68 and 69 of the Evidence Act. This is mandatory. Even if the other side does not object, the court cannot act on the document without hearing from the people who signed it.

In the courtroom, the petitioner's lawyer called his first witness — a neighbour who claimed to have seen the Will signed years ago. The neighbour hesitated. "I remember a document. I do not remember the details. It was a long time ago." The respondent's lawyer pounced. "You do not remember who wrote it? Who else signed? Where it was kept?" The neighbour shook his head. The judge made a note. The foundation was crumbling.

The Supreme Court in Sitaldas made this clear: simply stating a document was lost is insufficient. A detailed procedural foundation must be laid to ensure the authenticity and validity of the claimed original, especially when secondary evidence of a highly disputed document is being presented. The judge looked at the petitioner's lawyer. "You have a Xerox. You have a witness who remembers vaguely. But you have not told me who scribed the Will, who attested it, or who held it last. That is not a foundation. That is a hole in the ground."

The petitioner's lawyer tried again. He produced a second witness — a clerk from the lawyer's office who said the file had been misplaced. "When did you last see the original?" the judge asked. The clerk paused. "Two years ago. Maybe three." "And who had it before that?" The clerk could not answer. The judge closed the file. The smell of old paper and dust filled the air. The case was slipping away.

The missing attesting witnesses

The Will in question required two attesting witnesses under Section 68 of the Evidence Act. The petitioner had named them in his pleadings — two men who had supposedly signed the document years ago. But neither appeared in court. The first had moved away, the lawyer said. The second was unwell. The judge was not satisfied.

"The law is clear," the judge said. "If the document requires attestation, you must examine the attestors. Even if the other side does not object. Even if they sit silent. The court cannot act on a Will without hearing from the people who signed it." The respondent's lawyer nodded. "My Lord, that is the law in Sitaldas v. Santram. The petitioner has failed to lay the foundation. He has not produced the scribe. He has not produced the attestors. He has not told us who held the original last. The Xerox is worthless."

The judge looked at the Xerox copy again. It sat on the desk, a thin sheet of paper with faint lines and smudged text. It could be genuine. It could be a forgery. Without the foundation, the court had no way to know. "The party relying on secondary evidence must do more than produce a copy," the judge said. "They must prove the original existed, what it said, and why it is gone. That has not happened here."

Why this matters for every litigant

For lawyers and parties, the message is blunt. If you plan to rely on a Xerox copy because the original is missing, prepare for a fight. The other side will likely challenge the very existence of the original. And when they do, the court will demand more than a vague story about a lost file.

You must be ready to produce evidence of the document's creation — who wrote it, who witnessed it, who held it last. You must explain, with specificity, how it was lost. And if the document requires attestation, you must call those witnesses to court.

The judge in Suddapalli Lakshmi Saroja had seen too many cases where a Xerox copy was waved like a magic wand. "A copy is not proof," the judge seemed to say. "It is a starting point. The work begins after you produce it." The courtroom emptied. The petitioner's lawyer gathered his thin file. The Xerox copy went back into the folder. The case would not be decided on that piece of paper alone.

THE PLAY: Before you file a Xerox copy as secondary evidence, prepare a written statement detailing the document's creation, its last known custodian, and the circumstances of its loss — and be ready to prove each element with independent witnesses. If the document requires attestation, ensure the attesting witnesses are available to testify, or the court may reject the copy entirely.

The copy is not the original

The High Court's observation in Suddapalli Lakshmi Saroja v. Vishnu Botla Murali Krishna and others is a reminder that secondary evidence is a privilege, not a right. It exists to prevent a genuine loss from destroying a valid claim. But it cannot be used to manufacture a case out of thin air. A Xerox copy is a mechanical reproduction. It can be manipulated. It can be fabricated. And when the original is nowhere to be found, the court must act as a gatekeeper — not a rubber stamp.

The original was missing. The other side said it never existed. The court said: prove it.