In so far as the first reason is concerned it is not disputed that the plaintiff had caused summonses to be served upon the witness who had custody of the original and was called upon to produce it. The witness, however, did not comply with the order of the Court. The plaintiff subsequently applied for the issue of a warrant against the witness but no process-fee was paid for service of the writ. This does not, in our opinion, amount to default on the part of the plaintiff. As was pointed out by this Court in the case of Bhagabat Prasad Singh v. King Emperor 14 C.L.J. 120 : 11 Ind. Cas. 794 under Section 130of the Indian Evidence Act, no witness who is not a party to a suit can be compelled to produce his title-deed to any property, or any document in virtue of which he holds any property as pledgee or mortgagee or any document the production of which might tend to incriminate him, unless he has agreed in writing to produce them with the person seeking the production of such deed or some person through whom he claims. It cannot be disputed that the lessee under the perpetual lease of the 21st December 1874 was entitled to urge that the document was his title-deed, and that he was not bound to produce the original except in the event contemplated by Section 130 of the Indian Evidence Act. It is not alleged that the lessee had agreed with the plaintiff in writing to produce the original in Court. Consequently, if, after service of summons upon him, he did not pro duce the original, the plaintiff became entitled to use the certified copy as secondary evidence. The first reason assigned by the Subordinate Judge in support of his order of rejection of the document cannot, therefore be supported.
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Calcutta High Court
Imrit Chamar vs Sridhar Panday And Ors. on 29 August, 1911
Equivalent citations: 13 Ind Cas 120
Bench: Mookerjee, Carnduff
