Sunday, 17 March 2019

Whether document can be treated as proved if it is produced in consequence of notice to produce document?

Section 163, Evidence Act reads as under : --

"163. When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so."
The ingredients of the provision are :

(i) One party having given the other a notice to produce must call for that document;

(ii) Such document should be produced by such other party;

(iii) the party calling for the document must have inspected it.

When the abovesaid three steps have been followed the party calling for the document would be bound to give it a evidence on the party producing the document insisting on doing so.Section 163 of the Evidence Act has to be read along with Section 164. The two read together project the object underlying. If a party called upon to produce a document in his custody fails to produce the same, he would be debarred from producing that document as evidence unless the other party waives the right accrued to him or the Court still permits the production. On the contrary, if the party in possession of the document yields to the call of his opponent not only by producing the document but also by offering its inspection, the party calling for the document, cannot be permitted to turn around object to the production of that document in evidence. This appears to be a simple rule of fair trial between the two adversaries before a Court and nothing more. Be it noted that the two provisions enact a rule of evidence and not a principle of proof.

Distinction between evidence and proof is well defined and perceptible. It will be useful to read the definition of the term 'evidence' with reference to documents and the definitions of the terms 'proved', 'disproved' and 'not proved' in Section 3 of the Evidence Act.

'Evidence' means and includes

xxx xx

(2) all documents produced for the inspection of the Court;

Such documents are called documentary evidence.

'Proved'

A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

'Disproved'

A fact is said to be disproved when after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.

'Not proved'

A fact is said not to be proved when it is neither proved nor disproved.

Section 163 of the Evidence Act read in the light of the definition of the term 'evidence' leads to certain inferences. A party man call for production of a document in the custody of his opponent and may also inspect the same. Till that stage, the document remains a 'document' and does not become an 'evidence'. It is only when a document is produced for inspection of the Court that the 'document' becomes 'evidence'. The party calling for the document may have several weapons in his armoury utilising which it can prevent the other party's document from becoming evidence. All those weapons can be utilised at all times until all the three steps contemplated by Section 163 of the Evidence Act have been put in. A party may call for a document but the opponent may not produce. The opponent having produced the document, the party making the call may still be advised not to inspect. Till this stage the party is not debarred from objecting to other party's documents becoming evidence, if it can. But having inspected the document, the party would be debarred from objecting to the attempt of other party in tendering that document in evidence or in other words from producing that document for the inspection of the Court. However, that does not mean that if the law bars admissibility of a document than merely on account of production and inspection of the document between the parties, it would become admissible. For example, if a document is required by law to be registered to be scribed on stamp paper of a particular denomination, which it is not, a mere product ion for and inspection by adversary of the document would not make it admissible in evidence. Similarly, Section 163 of the Evidence Act does not speak of relevancy of the document. A document may be admissible in evidence and yet be not relevant. Then, a document may be required by law to be proved in a particular mode, such as a will is required to be proved in accordance with Section 68 of the Evidence Act. In a disputed case of will, if the party disputing the will propounded by his opponent, has called for and inspected the will, it would not mean that the opponent would be absolved of his responsibility of proving the will in the manner required by Section 68 of the Evidence Act.

Evidence in relation to law includes all the legal means exclusive of mere argument which tend to prove or disprove any fact the truth of which is submitted to judicial investigation. This term and the word proof are often used as synonyms, but the latter is applied by accurate logicians, rather to the effect of evidence, than to evidence itself (Taylor 11th Ed., p. 1). The definitions of the words 'proved' 'disproved' and 'not proved', embodiment of sound rule of common sense, would be described the degree of certainty to be arrived at before the fact can be said to be proved, disproved and not proved by evidence. In short, proof is the effect of evidence. It is this background which assumes significance as to why the draftsman of the Evidence Act deliberately abstained from using the term 'proof' in any of its variations in the language of Section 163 of the Evidence Act.

A few decided cases may now be noticed.

In Rajagopala Ayyangar v. Ramanuja Ayyangar 72 Ind Cas 459 : (AIR 1923 Mad 607), a Division Bench of Madras High Court observed :

"Section 163 of the Evidence Act does hot render proof of the documents to be exhibited unnecessary or alter the normal incidents of that burden.....it includes nothing relating to the burden of proof or the necessity for the proof prescribed in the other Sections of the Act."
In Ramadhin v. Ram Dayal 57 Ind Cas 973 : (AIR 1919 Oudh 8), it was held :--

"Where documentary evidence is admitted under the special provisions of Section 163 of the Evidence Act, such evidence is merely evidence in the case for what it may be worth, and is not conclusive against the party who has inspected the documents."

IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)

C.R. No. 86 of 1989

Decided On: 26.09.1989

 Phoolchand Garg Vs. Gopaldas Agarwal and Ors.

Hon'ble Judges/Coram:
R.C. Lahoti, J.

Citations: AIR 1990 MP 135



The defendants are legal heirs of late Brijbhushandas Agrawal, who expired on 26-4-73. On 18-1-82, the plaintiff filed the suit for specific performance of a contract of sale alleging that late Brijbhushandas Agrawal entered into contract for selling the suit house for a consideration of Rs. 30,000/-in favour of the plaintiff and having secured an amount of Rs. 5,000/- by way of advance, executed an entry to that effect in the account hooks to the plaintiff and signed the same on affixing a revenue stamp on 11-11-72. Admittedly, plaintiff has been holding a shop (part of the suit house) on tenancy from late Brijbhushandas. In the written statements, filed separately by different sets of defendants, the plaint allegations have been denied and the entry dated 11-11-72 in the account books has been alleged to be false and fabricated one.

During the course of the trial some of the defendants served a notice under Order 11, Rule 15/16 of the C.P.C. for inspection of the account-books containing the disputed entry. The account book was produced by the plaintiff and inspected by the defendants desirous of inspection. During the statement of the plaintiff, the entry in the account books was exhibited. When the defendants wanted to cross-examine the plaintiff on the entry in the account books, the cross-examination was objected to by the plaintiff by placing reliance on Section 163 of the Evidence Act. It was argued that the defendant having given the plaintiff a notice to produce documents and the plaintiff having produced them, the defendant having inspected the same, the document ought to be treated as evidence of the defendant taking away his right of cross-examination. In fact, during the course of hearing, it was submitted on behalf of the petitioner placing implicit reliance on Kisan Ghule v. Puransa, MANU/NA/0072/1927 : AIR 1928 Nag 119, that the entry in the account book needed no further proof and it becomes evidence in toto.

The contention of the plaintiff was rejected by the trial Court. The plaintiff has come up in revision.

The question arising for determination is the nature, extent and scope of the provision contained in Section 163, Evidence Act.

Section 163, Evidence Act reads as under : --

"163. When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so."
The ingredients of the provision are :

(i) One party having given the other a notice to produce must call for that document;

(ii) Such document should be produced by such other party;

(iii) the party calling for the document must have inspected it.

When the abovesaid three steps have been followed the party calling for the document would be bound to give it a evidence on the party producing the document insisting on doing so.

Section 163 of the Evidence Act has to be read along with Section 164. The two read together project the object underlying. If a party called upon to produce a document in his custody fails to produce the same, he would be debarred from producing that document as evidence unless the other party waives the right accrued to him or the Court still permits the production. On the contrary, if the party in possession of the document yields to the call of his opponent not only by producing the document but also by offering its inspection, the party calling for the document, cannot be permitted to turn around object to the production of that document in evidence. This appears to be a simple rule of fair trial between the two adversaries before a Court and nothing more. Be it noted that the two provisions enact a rule of evidence and not a principle of proof.

Distinction between evidence and proof is well defined and perceptible. It will be useful to read the definition of the term 'evidence' with reference to documents and the definitions of the terms 'proved', 'disproved' and 'not proved' in Section 3 of the Evidence Act.

'Evidence' means and includes

xxx xx

(2) all documents produced for the inspection of the Court;

Such documents are called documentary evidence.

'Proved'

A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

'Disproved'

A fact is said to be disproved when after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.

'Not proved'

A fact is said not to be proved when it is neither proved nor disproved.

Section 163 of the Evidence Act read in the light of the definition of the term 'evidence' leads to certain inferences. A party man call for production of a document in the custody of his opponent and may also inspect the same. Till that stage, the document remains a 'document' and does not become an 'evidence'. It is only when a document is produced for inspection of the Court that the 'document' becomes 'evidence'. The party calling for the document may have several weapons in his armoury utilising which it can prevent the other party's document from becoming evidence. All those weapons can be utilised at all times until all the three steps contemplated by Section 163 of the Evidence Act have been put in. A party may call for a document but the opponent may not produce. The opponent having produced the document, the party making the call may still be advised not to inspect. Till this stage the party is not debarred from objecting to other party's documents becoming evidence, if it can. But having inspected the document, the party would be debarred from objecting to the attempt of other party in tendering that document in evidence or in other words from producing that document for the inspection of the Court. However, that does not mean that if the law bars admissibility of a document than merely on account of production and inspection of the document between the parties, it would become admissible. For example, if a document is required by law to be registered to be scribed on stamp paper of a particular denomination, which it is not, a mere product ion for and inspection by adversary of the document would not make it admissible in evidence. Similarly, Section 163 of the Evidence Act does not speak of relevancy of the document. A document may be admissible in evidence and yet be not relevant. Then, a document may be required by law to be proved in a particular mode, such as a will is required to be proved in accordance with Section 68 of the Evidence Act. In a disputed case of will, if the party disputing the will propounded by his opponent, has called for and inspected the will, it would not mean that the opponent would be absolved of his responsibility of proving the will in the manner required by Section 68 of the Evidence Act.

Evidence in relation to law includes all the legal means exclusive of mere argument which tend to prove or disprove any fact the truth of which is submitted to judicial investigation. This term and the word proof are often used as synonyms, but the latter is applied by accurate logicians, rather to the effect of evidence, than to evidence itself (Taylor 11th Ed., p. 1). The definitions of the words 'proved' 'disproved' and 'not proved', embodiment of sound rule of common sense, would be described the degree of certainty to be arrived at before the fact can be said to be proved, disproved and not proved by evidence. In short, proof is the effect of evidence. It is this background which assumes significance as to why the draftsman of the Evidence Act deliberately abstained from using the term 'proof' in any of its variations in the language of Section 163 of the Evidence Act.

A few decided cases may now be noticed.

In Rajagopala Ayyangar v. Ramanuja Ayyangar 72 Ind Cas 459 : (AIR 1923 Mad 607), a Division Bench of Madras High Court observed :

"Section 163 of the Evidence Act does hot render proof of the documents to be exhibited unnecessary or alter the normal incidents of that burden.....it includes nothing relating to the burden of proof or the necessity for the proof prescribed in the other Sections of the Act."
In Ramadhin v. Ram Dayal 57 Ind Cas 973 : (AIR 1919 Oudh 8), it was held :--

"Where documentary evidence is admitted under the special provisions of Section 163 of the Evidence Act, such evidence is merely evidence in the case for what it may be worth, and is not conclusive against the party who has inspected the documents."
Kisan Ghule v. Puransa, (MANU/NA/0072/1927 : AIR 1928 Nag 119) (supra) relied on by the learned counsel for the petitioner is a peculiar case of its own type. It appears that the plaintiffs suit based on a mortgage was dismissed by the trial Court and the plaintiff came up in appeal. The facts quoted in the report show that the suit was based on a mortgage and not on account books but the plaintiff desired to tender his relevant account book entries as evidence and, therefore, mentioned them as basis of evidence in his list of reliance. The defendants taking advantage of this mention applied for inspection of plaintiffs account books with a view to extract their defence out of them. The plaintiff protested but not- withstanding his protest the inspection was allowed. The defendants took inspection and filed an additional written statement admitting some and disputing certain other amounts entered in the books. However, they did not make their defence intelligible by filing extracts of the relevant entries. The Court did not examine the defendants nor call for the production of extracts of accounts. In this background, the learned Additional Judicial Commissioner proceeded to observe :

"Under that Section it was the plaintiff's duty to have required the defendants, who had taken inspection, to tender the account books as evidence of both parties. Having taken inspection of plaintiffs books of account the defendants took the risk of making them evidence of both parties in the case. In fact they needed no further proof and were admissible and should have been admitted in toto."
A little later, the learned Additional Judicial Commissioner again noticed a defect of procedure which, in his opinion, was very flagrant and that was to draw an adverse inference against the plaintiff for non-production of his account books even though he sued upon a bond or mortgage and not on the account books.

It was observed :

"Such an inference is not permissible unless the other party has called upon the plaintiff to produce such documents and the latter has failed to comply with the demand. Here, he had complied with the demand of the defendants and produced his account books for their inspection and they had in fact taken the inspection and "extracted" their "defence out of them".
The appeal was allowed and the case was remanded for retrial. In making several observations, the learned Addl. Judicial Commissioner relied on the following extract from Rajeshwari Kaur v. Rai Bal Krishan, MANU/PR/0037/1887 : ILR (1887) All 713 :

"It would be a monstrous thing if the party sued were allowed to call for the accounts of the plaintiff and extract from them just such items as proved matters of defence.....and were not to allow those items which make in favour of the plaintiff. The High Court held that the books must be admitted in toto. Their Lordships think the High Court were entirely right."
In Rajeswari Kaur (supra), the plaintiffs suit was on a bond for a debt of Rs. 20,000/-. On the face of the bond of Rs. 13,000/- consisted of old debt. The defendant disputed the recitals of the bond. The defendant called for the books of plaintiff to show that the amount was not advanced. Trial Court believed the accounts books of the plaintiff in part to the extent they favoured the defendant and disbelieved the other part. It was the defendant who was seeking defence in the books of the plaintiff. In this background, the Allahabad High Court made the observations extracted in Kisan Ghule.

A reading of Rajeswari Kaur (MANU/PR/0037/1887 : ILR 1887 All 713) (supra) indicates that the Allahabad High Court was emphasising that the plaintiffs books of account called for by the defendant, should have been looked in total and not in the manner in which the trial Court did in that case by relying on such extracts as favoured the defendant and discarding such as did not favour him. But Kisan Ghule (MANU/NA/0072/1927 : AIR 1928 Nag 119) (supra) goes on to say that such documents need no further proofs. No authority or sanction is to be found for such a vide proposition either in Rajeshwar Kaur or in Section 163 of the Evidence Act itself. The observations in Kisan Ghule must therefore be held to have been made per incuriam.

1 The rule that statute must be read a whole has been extended to permit reference to other statutes in pari materia i.e. statutes dealing with the same subject matter of forming part of the same system. Different statutes in pari materia though made at different times and not referring to each other shall be taken and construed together, as one system and explanatory to each other. (See Interpretation of Statutes, G. P. Singh, Fourth Edition 1988, p. 161). Section 163 of the Evidence Act cannot be read or interpreted in isolation. In its applicability to civil cases, it will have to be read along with the several provisions of the Code of Civil Procedure relating to the documents. While the Evidence Act was enacted in 1872 to consolidate, define and amend the law of Evidence, the Code of Civil Procedure was enacted in 1908 to consolidate and amend the procedural law applicable to civil Courts. To some extent the area of operation of the two is the same or overlapping. A perusal of the scheme of the Code of Civil Procedure, indicates that there are following categories of the documents to be found :--

1) Documents forming basis of the suit;

2) Documents relied on by the plaintiff as evidence in support of the claim;

3) Documents which are intended to be relied on by either party.

4) Documents relating to any matter in question and forming subject matter of notice. to produce under Order 11, Rule 15/16 as referred to in the pleadings or affidavit Filed under Order 11, Rule 13.

2 Documents forming basis of the suit i.e. on which the plaintiff sues and in his possession or power are required to be produced along with the plaint under Rule 14 of Order 7. Documents relied on by the plaintiff, whether in his possession or power or not, forming evidence in support of the plaintiffs claim are required to be entered in a list to be added or amended to the plaint. A document required to be produced Under Order 7, Rule 14(1) or required to be entered in the list Under Order 7, Rule 14(2) not so produced or entered cannot later on be received in evidence on behalf of the plaintiff. If the documents have been produced under Sub-Rule(1) there would be no occasion for service by the defendant on the plaintiff of a notice for production of such document. Section 163 of the Evidence Act would not therefore apply to the document produced along with plaint under Order 7, Rule 14(1). If not produced, the defendant need not seek production of such document nor their inspection by himself because he can be rest assured that such documents would never have an opportunity of an inspection by the Court because of the bar enacted by Order 7 Rule 18, C.P.C. However, the document on which the plaintiff has sued or on which he has relied may still be considered by the defendant to be of use to him and waiving the benefit of the bar enacted by Order 7, Rule 18, the defendant may choose to apply for discovery of such document, followed by notice of production and inspection thereto. Section 163 of the Evidence Act would come into play in such an eventuality and the plaintiff would be in a position to contend that though he had not produced nor listed the documents as his evidence and though he was debarred from producing them in evidence yet the defendant having secured the production and inspection of the documents, he (The plaintiff) was justified in insisting on the defendant producing before the Court such documents as his evidence; the bar Under Order 7, Rule 18 of the C.P.C. having been lifted by the act o! the defendant himself.

3 Similar situation would arise Under Order 13, Rule 1/2., C.P.C. If a party intending to rely on a document in his possession or power having not placed the same before the Court on before the settlement of issues Under Order 13, Rule I, C.P.C., he may be debarred from producing the same unless permitted by the Court Under Order 13, Rule 2 of the C.P.C. Now, the opposite party may rest contented by arguing that an adverse inference be drawn against his adversary for non-production of the document which ought to have been produced as relied on by him. But if that party chooses to seek production and inspection of the adversary's document, again the bar created by Rule 2 of Order 13 is lifted and the party on whom lay originally the responsibility of producing the document before the Court under Rule 1 of Order 13 would be justified in insisting on the opponent for production of the document as his evidence. Then the adversary having secured production and inspection of the document would be debarred from relying on the bar created by Rule 2 of Order 13 and would be bound to give document in evidence.

4 Under Order 11, Rule 12, C.P.C. discovery of all and any documents in possession of any party to the suit but relating to any matter in question can be sought for by the opponent. The party will not be compelled to produce for inspection such documents which he swears relate to his own case and do not relate to or tend to support the case of his opponent. A party need not produce any document which he can swear relates to his own title and contains nothing which tends to establish the title of his opponent. Discovery of such documents having been denied, there would be no occasion for production and inspection of such documents. Hereto the party seeking discovery of documents would be justified in contending, if an occasion may arise, that adverse inference be drawn against the opponent for denying discovery of the documents. However, if an affidavit has been made Under Order 11, Rule 13, then under Rule 14 there can be an order for production of the documents and Order 15 the opponent may inspect the document. That having been done, the party offering inspection and production of the documents would be entitled to insist on opposite party not to object at tendering in evidence such documents because Section 163 of the Evidence Act would come into play.

Therefore, in a civil case, Section 163 of the Evidence Act has no application where the document has already been produced before the Court by any party to the case as its documents under any of the provisions referred to hereinabove. The provision would come into play when the party in possession or power of the document has not produced the same in the Court and runs the risk of an adverse inference being drawn against him or of being debarred from producing the document in the Court at a later stage of the proceedings unless his opponent becomes instrumental in seeking production and inspection of the document and thereby open the shut-out-gate for the document coming to the Court. This only is the effect of Section 163 of Evidence Act read in the light of several provisions of the Code of Civil Procedure. It is significant that the relevant part of Section 163 reads 'he is bound to give as evidence' and not that 'he is bound to give it as his evidence'.

To sum up

i) Kisan Ghule, MANU/NA/0072/1927 : AIR 1928 Nag 119 lays down too wide a proposition and must be held to have been decided per incuriam;

(ii) Section 163 of Evidence Act does not speak of admissibility or relevancy of a document nor does it speaks of proof;

(iii) applicability of Section 163 of Evidence Act does not dispense with the necessity of proof of the document in question by the party on whom lies the burden of proof and as such the party calling for production and having inspection of the document is not debarred from exercising his right of cross-examination on the document;

(iv) the only effect of Section 163 of the Evidence Act is that a party having called for and inspected a document is debarred from objecting to its production for inspection by Court; if the document be otherwise admissible in evidence;

(v) call for production and inspection of a document by a party has the effect of lifting away the bar imposed by Rule 18 of Order 7, Rule 2 of Order 13 and Rule 15 of Order 11 on the defaulting party in possession or power of the document.

The upshot of the abovesaid discussion is that the trial court was justified in overruling the objection of the plaintiff-petitioner to the cross-examination by the defendants on the entry made in the account books. Production of the document by the plaintiff for inspection by the defendants at the latter's call did not dispense with the necessity of the proof of the document, nor did it take away the right of the defendants in challenging its genuineness and veracity.

The revision is dismissed. However, there shall be no order as to costs.

All the parties, through their respective counsel, are directed to appear before the trial Court on 1-11-1989 before which date the office shall see that the record reaches back to the trial court.




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