Wilson and Beverley, JJ.
1. The only point discussed before us on this appeal is, whether secondary evidence of the contents of an acknowledgment used to keep alive a cause of action beyond the ordinary period of limitation, can be given, where the original is proved to have been lost or destroyed, or whether the effect of paragraph 2 of Section 19 of the present Limitation Act XV of 1877 is absolutely and always to exclude secondary evidence in such a case.
2. This section first provides for keeping alive a claim by acknowledgment, and requires that such acknowledgment shall be in writing and signed, and shall be given before the claim is barred by limitation. Then in the second paragraph it is said: 'When the writing containing the acknowledgment is undated oral evidence may be given of the time when it was signed; but oral evidence of its contents shall not be received.' Now, the question is, what is the meaning and effect of these words?
3. In the former Limitation Act (Act IX of 1871) the corresponding section is Section 20; which said that no promise or acknowledgment should have the effect of excluding limitation unless certain conditions were complied with. Then Sub-section (c) is this: 'When the writing containing the promise or acknowledgment is undated, oral evidence may be given of the time when it was signed. But when it is alleged to have been destroyed or lost, oral evidence of its contents shall not be received.'
4. When that Act was passed the present Evidence Act was not in existence; and there was no section in any Act relating to evidence defining clearly the cases in which secondary evidence of a document could be given, but it was known law that amongst the grounds which authorized the admission of secondary evidence was the loss or destruction of the original. In the sentence just read, the only case referred to is the destruction or loss of the document. The effect clearly was to exclude oral evidence of an acknowledgment if tendered on either of these grounds; but nothing was said about the case where the document is in the possession of the opposite party, or is a public document, or beyond the jurisdiction of the Court; or the other cases in which secondary evidence of the contents of a document may ordinarily be given.
5. Then came the Evidence Act. That Act has denned the cases in which secondary evidence is admissible. The first section is Section 64, in which the general rule of law is laid down, that 'documents must be proved by primary evidence except in the cases hereinafter mentioned.' Then Section 65 gives the various cases in which secondary evidence may be given. The first is when the document is in the possession or power of the opposite party, or of any person out of the reach of, or not subject to, the process of the Court, or of any person legally bound to produce it but who fails to produce it when required. The second, when the contents are admitted by the opposite party. The third, when the original is destroyed or lost. The fourth, when the original is a public document. The fifth, when the document is one of which. a certified copy can be used. And so on.
6. Then came the Limitation Act of 1877 with which we are now dealing. The language of Section 19 is altogether different from the language of the prior Act of 1871. The language of the prior Act of 1871, so far as oral evidence is concerned, was necessarily in direct conflict with Section 65 of the Evidence Act, because, according to the Evidence Act, secondary evidence is admissible of the contents of a document generally, if the original is lost or destroyed, but according to the Act of 1871 oral evidence of the contents of an acknowledgment would not be admissible in such a case.
7. The words now used are different. One branch of the law of Evidence is that already referred to. It is contained in Section 64 and the following sections of the Evidence Act, and it determines the oases in which secondary evidence may be given of the contents of a document not produced. Another branch of that law is contained in Section 91, and the following sections. It deals with the question how far oral evidence, or evidence of oral communications, may be given to vary, control, or add to the effect of a document.
8. The first part of the paragraph before us clearly belongs to the latter branch of the law. And, it would seem, the object was to remove any question which might otherwise have arisen whether the rules generally excluding oral evidence to alter the effect of documents might not exclude oral evidence of the date of an undated document, where the date is an essential matter. Accordingly, it is said that oral evidence of the date of the document may be given. The paragraph then proceeds: 'but oral evidence of its contents shall not be received.' These latter words are introduced with a 'but,' and they speak not of secondary evidence hut of oral evidence. We do not think they ought to be understood as dealing with an entirely different branch of the law of evidence from the earlier part of the sentence, and.. as repealing Section 65 of the Evidence Act, so far as it relates to knowledgements. We think the words in question are of the nature of a saving clause, guarding against the supposition that the prior words interfere with the general rules as to oral evidence further than the express words require.
9. The alternative view which we are asked to adopt is to read the words as excluding secondary evidence, oral or otherwise not only in the cases mentioned in the Act of 1871 but in all cases whatsoever.
10. There is nothing in the terms of the Act constraining us so to hold, and the consequences of doing so would be serious.
11. If we interpret Section 19 of the Limitation Act As excluding secondary evidence when the original document is lost or destroyed, it must also exclude secondary evidence of the contents of a document in every one of the cases mentioned in Section 65 of the Evidence Act. For example, the party objecting to secondary evidence, may have the original in his pocket, and when called upon to produce it may pertinaciously refuse to do so. If secondary evidence cannot be given, justice will be frustrated.
12. So again an acknowledgment may be in the form of a public the record as was apparently the case in Daia Chand v. Sarfraz I.L.R. 1. All. 117 or the document may be out of the jurisdiction and control of the Court.
13. We think that the words in question in Section 19 ought not to be read as excluding secondary evidence of the contents of an acknowledgment which has been lost or destroyed, and that, therefore, the view taken by the lower Appellate Court is right. The appeal will be dismissed with costs.