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C.H. Shah Vs. S.S. Malpathak and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberSuit No. 350 of 1963
Judge
Reported inAIR1973Bom14; (1972)74BOMLR505; 1972MhLJ816
ActsEvidence Act, 1872 - Sections 63, 65, 79, 67, 68 and 114
AppellantC.H. Shah
RespondentS.S. Malpathak and ors.
Appellant AdvocateM.H. Shah, ; M.P. Laud and ;A.N. Mody, Advs.
Respondent AdvocateR.L. Dalal and ;R.J. Joshi, Advs.
Excerpt:
indian evidence act (i of 1872), sections 74, 67, 68 -- whether original of public document can be admitted in evidence without proving its execution.;if the original of a public document is sought to be tendered in evidence, it must be proved in the manner required by law as any other document required to be proved under sections 67 and 68 of the indian evidence act, 1872.;sagar mal v. the state [1951] a.i.r. all. 816, not agreed with. s. & r. of legal affairs v. moazzem hossain [1947] a.i.r. cal. 318, agreed with.;bishnath prasacl v. emperor [1948] a.i.r. oudh 1, mobarik ali v. state of b'bay (1957) 61 bom. l.r. 58, s.c and east india trading co. v. badat & co. (1958) 61 bom. l.r. 333, referred to. - - reference may also be made to the concluding part of section 78 which makes..........1969 without proving those documents in the normal way, it being his contention that they were public documents and there should, therefore, be a presumption of genuineness in their favour. mr. dalal objected to those documents being tendered in evidence without being duly proved. the said bills-cum-receipts were then marked x-1 by me merely for the purpose of identification and i had reserved my ruling in regard to their admissibility as the point raised is one of frequent occurrence and of some importance.2. it will be convenient at the outset to refer to the relevant sections of the evidence act. section 61 of the evidence act provides that the contents of documents may be proved either by primary or secondary evidence; and section 62 tells us that primary evidence means document.....
Judgment:
ORDER

1. In the course of the examination-in-chief of the plaintiff's son Lalbhai Shah. Mr. M. H. Shah who appeared for the plaintiff sought to tender the originals of municipal bills-cum-receipts for the period October 1968 to March 1969 without proving those documents in the normal way, it being his contention that they were public documents and there should, therefore, be a presumption of genuineness in their favour. Mr. Dalal objected to those documents being tendered in evidence without being duly proved. The said bills-cum-receipts were then marked X-1 by me merely for the purpose of identification and I had reserved my ruling in regard to their admissibility as the point raised is one of frequent occurrence and of some importance.

2. It will be convenient at the outset to refer to the relevant sections of the Evidence Act. Section 61 of the Evidence Act provides that the contents of documents may be proved either by primary or secondary evidence; and Section 62 tells us that primary evidence means document itself produced before the Court, which must and has always been construed to mean, the original of the document in question. Section 64 lays down that documents must be proved by primary evidence, except in the cases set out in Section 65 which follows it. Section 65, by its various clauses lays down in what cases secondary evidence of a document is admissible and for the purpose of the present case it is necessary to refer only to Clause (e) thereof which enacts that secondary evidence is admissible when the original is a public document within the meaning of Section 74 of the Act. In the last-but-one para of the said section it is laid down that, in cases falling under Clause (e) the secondary evidence of a public document that would be admissible would only be a certified copy of that document and nothing else. It may, at this stage, be mentioned that the Evidence Act sets out in Section 63 the various types of secondary evidence. The first clause refers to certified copies as being secondary evidence, and Clauses (2) and (3) refer to copies either made by a mechanical process which in itself ensures their accuracy, or copies compared with such copies or copies compared with the original to be secondary evidence. Section 74 lays down what documents are public documents and Clause (ii) of sub-section (1) makes documents forming the acts, or records of the acts of official bodies to be public documents. It was sought to be contended by Mr. Dalal that municipal authorities are not official bodies but whatever doubt may have arisen in that respect is cleared on reference to Clause (5) of Section 78 which includes the proceedings of a municipal body within the category of public documents. Section 74 must be construed in the context of the scheme of the other sections relating to public documents and, so construed, in my opinion, it would certainly include documents which form the acts or records of the acts of the municipal authorities within the category of public documents. Reference may also be made to the concluding part of Section 78 which makes it clear that in the case of the public documents specified in Section 78 both the original as well as a certified copy thereof would be admissible in evidence. I must also refer to Sections 67 and 68 of the Act. Section 67 enacts in terms which are both mandatory (the word used in 'must' as well as unqualified that in the case of all documents the signature, or so much of the document as is alleged to be in the handwriting of some person must be proved to be in his handwriting; and in the case of documents which are required by law to be attested. Section 68 further requires that, except in the case of registered documents one attesting witness at least must be called. Sections 67 and 68, therefore, enjoin that all documents sought to be tendered in evidence must be proved and the manner in which they are to be proved is laid down by Sections 45, 47 and 73 of the Act as well as by the decision in the case of Mobarik Ali v. State of Bombay, : 1957CriLJ1346 to which I will refer later on. Section 79 of the Act states that the Court shall presume the genuineness of all certified copies admissible in evidence according to law. Section 114 of the Evidence Act empowers the Court to draw presumptions having regard to the common course of natural events human conduct and public and private business in relation to the facts of the particular case, and Illustration (e) thereto states that the Court may presume that judicial and official acts have been regularly performed. These are all the statutory provisions to which it is necessary to refer for the purpose of the present ruling. A consideration of these sections of the Evidence Act shows clearly that the only difference which the Evidence Act makes between public and private documents is, (a) in regard to the form of secondary evidence which is admissible, viz. a certified copy; and (b) in regard to the presumption of the genuineness of certified copies. In all other respects, however no distinction is drawn by the Evidence Act between public and private documents.

3. Two questions arise for the purpose of giving the present ruling and they are : (1) whether in the case of a public document certified copies alone are admissible in evidence, or the original is also admissible in evidence; and (2) whether if the original is also admissible in evidence, it must be proved in the same manner as any other document is required to be proved under Ss. 67 and 68 of the Evidence Act. As far as the first question is concerned. I have no doubt that the original of a public document is also admissible in evidence. The provisions contained in Section 65(e) and Section 77 of the Evidence Act are only in the nature of enabling provisions which permit certified copies to be tendered as secondary evidence. It has been held by the Privy Council in the case of Haranund Roy v. Ram Gopal. (1900) 27 Ind App 1 that though a certified copy of a foreign judicial record may be presumed to be genuine and accurate under Section 87 of the Evidence Act and is admissible as secondary evidence. that does not exclude 'other proof.' Moreover as already stated above the concluding part of Section 78 of the Act itself shows that in the case at any rate of the public documents enumerated in that section the original or a certified copy would be admissible in evidence. There is no reason why any distinction should be drawn between public documents of the nature indicated in Sections 78 and 86 and other public documents. Sections 62 and 64 of the Evidence Act under which the originals of documents are stated to be primary evidence and admissible as such do not make any distinction between public documents and private documents. In the decision of the Privy Council in the case of Easwaramurthi v. King Emperor, the original of a warrant of arrest or a certified copy thereof were stated to be admissible under Sections 62 and 65, respectively. The original even of a public document is the best evidence of that document and in my opinion it is therefore, always admissible the provisions in the Evidence Act relating to the admissibility of a certified copy as secondary evidence thereof being merely in the nature of an additional or alternative facility provided by law for the purpose of ensuring its preservation and safety. I have, therefore, no hesitation in holding that the original of a public document is admissible in evidence.

4. The next question is whether the original of a public document can be admitted in evidence without proving its execution in accordance with law. Section 79 which raises a presumption of the genuineness of certified copies has no application to original documents (vide AI 1948 Oudh 1. para 22) and indeed that is apparent from the plain language of that section itself. As laid down by the Supreme Court in the case of Bhinka v. Charan Singh : 1959CriLJ1223 para 7, Section 79 only raises a rebuttable presumption with regard to the genuineness of certified copies and that too only if they are executed substantially in the form and in the manner provided by law. What is sought to be contended by Mr. Shah is that if a certified copy of a public document is to be presumed to be genuine a fortiori the original of a public document should be presumed to be genuine and should not be required to be proved in the manner in which private documents are required to be proved by law. I am afraid I cannot accept that argument of Mr.Shah. In all cases of secondary evidence under Section 65 read with Section 63 of the Evidence Act when a copy or an oral account of a document is admitted as secondary evidence the execution of the original is not required to be proved but if the original itself is sought to be tendered it must be duly proved and there is no reasons for applying a different rule to public documents. Secondly, in the case of a certified copy, before a presumption of its genuineness can be raised under Section 79, as laid down by the Supreme Court in Bhinka's case already referred to above it must be shown that the certified copy was executed substantially in the form and in the manner provided by law. There would, therefore, be a check or safeguard in so far as the officer certifying it in the manner required by law would have to satisfy himself in regard to the authenticity of the original and in regard to the accuracy of the copy which he certifies to be a true copy thereof. On the other hand if the original of a public document is to be admitted in evidence without proof of its genuineness, there would be no check whatever either by way of scrutiny or examination of that document by an officer or by the Court. The third and perhaps the most important reason, for not accepting Mr.Shah's argument on the point which I am now considering is that neither Section 67 nor Section 68 of the Evidence Act which lay down that the signature and the handwriting on a document must be duly proved do not (sic) make any make any exception in the case of public documents. In view of the provisions is said section all documents whatever be their nature must therefore be proved in the manner provided by Section 45, 47 or 73 of the Evidence Act or in the case of certain types of documents, by the intrinsic proof afforded by their own contents as laid down by the Supreme Court in the case of : 1957CriLJ1346 to which I have already referred. The contention of Mr.Shah which I am now considering no doubt receives support from a decisions of a Division Bench of the Allahabad High Court in the case of Sagar Mal v. State : AIR1951All816 and Mr.Shah's argument before one is reproduced in those very terms ion that judgment in regard to the sanction to prosecute which was in question in that case but I am agreed. I do not agree with the view taken therein. I prefer the view taken by the Calcutta High Court in the case of Supdt. and Remembrance of Legal Affairs v. Moazzem Hoosain. : AIR1947Cal318 . in which it was held by a Division Bench of that Court that where the original of the sanction to prosecute is itself produced such sanction must be duly proved.

5. The only question which remains for consideration is whether a presumption of the genuineness of the original of a public document should be drawn by reason of Illustration (e) to Section 114 of the Evidence Act to the effect that official acts have been regularly performed. It is no doubt true that it has been held by a Division Bench of this Court in the case of East India Trading Co. v. Badat & Co., : AIR1959Bom414 that Section 114 of the Evidence Act is wide enough to permit the Court to raise a presumption not only with regard to oral evidence, but also with regard to documentary evidence. It may be mentioned that the decision of the Division Bench in the said case was reversed on appeal by the Supreme Court by a majority : [1964]4SCR19 , but in the judgment of the majority the Supreme Court has not referred tot he point mentioned above. Apart from the undesirability of taking a view which would let in any and every document tendered by Government in suits to which it is a party without proof of genuineness, in my opinion, no presumption under Section 114 can be drawn in view of the mandatory and unqualified term of Sections 67 and 68 of the Evidence Act. Section 114 which to put it in popular language, merely empowers the Court to use its commonsense cannot be used to contravene an express provision of the Act itself. I, therefore, hold that if the original of a public document is sought to be tendered in evidence it must be proved in the manner required by law. In the result I reject the bills-cum-receipts which have been marked X-1 by me for identification and do not admit them in evidence.

6. Ordered accordingly.


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