Whether inadmissible document can be admitted in evidence if there is consent or want of objection from other side?

 Moreover   by   consent,   proof   of    the document may be dispensed with, but if the document is intrinsically inadmissible in evidence, no amount of consent by any party can confer the status of admissibility upon the said document. If an authority is necessary for this proposition, it is to be found from the judgment of the Madras High Court in Kamulammal Avergal v. Athinkari Sangali Subha Pillai (1918) 35 Mad LJ 11 : AIR 1919 Mad 758 (2). At page 14 (of Mad LJ) : at p. 760 of AIR of the said judgment, the learned Judges state as follows :-- 
  "Mr. Justice Benson and Mr. Justice Sundaram Aiyar after reviewing all the authorities on the question point out in Shri Rajah Pra-kasarayanim Garu v. Venkata Rao (1912) ILR 38 Mad 160 "consent or want of objection to the reception of evidence which it irrelevant cannot make the evidence relevant"." 
 

 The ledger book which is sought to be produced becomes relevant only under the provisions of Section 34 of the Evidence Act and if the document does not qualify as relevant document within the contemplation of the said section, then the document is wholly irrelevant and any amount of consent by the plaintiffs would not convert the irrelevancy into relevancy.  

Bombay High Court

Zenna Sorabji And Ors. vs Mirabelle Hotel Co. (Pvt.) Ltd. ... on 14 January, 1980

Equivalent citations: AIR 1981 Bom 446

Bench: S Manohar

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Whether document though inadmissible in evidence can be used by witness to refresh his memory by referring to it?

The Privy Council in the decision reported in Jewan Lal Daga v. Nilmani, AIR 1928 PC 80 had occasion to consider whether the account books produced at the late stage, not admitted in evidence, could be allowed to be perused by the party to refresh his memory at the time of evidence and held in the affirmative. Such a decision was rendered on the ground that refusal to permit a man to refresh his memory by proper relevant contemporaneous documents might lead to grave injustice. In Abdulla v. Emperor, AIR 1933 Lahore 716 (FB), a Full Bench considered the question whether a Magistrate while giving oral evidence can refresh his memory by looking into the written memorandum prepared by him which is inadmissible in evidence as the same was not recorded under Section 164, Cr. P.C. The Court held that the oral evidence of the Magistrate is admissible, but his memorandum is not admissible though he can refresh his memory under Section 159 of the Evidence Act when underexaminadon, by referring to the memorandum. In the decision reported in Mohammad Salabat v. Emperor, AIR 1937 Lahore 475, it was held that a witness who is to be examined on the side of the prosecution can refer to the documents which he had prepared under Section 159 of the Evidence Act and state in Court everything which is material. The Supreme Court in the decision reported in State of Andhra Pradesh v. Cheemalapati Ganeswara Rad, (1964) 3 SCR 297 : (AIR 1963 SC 1850), held that where a witness has to depose to a large number of transactions and those transactions are referred to or mentioned either in the account books or in other documents, there is nothing wrong in allowing the witness to refer to the account books and the documents while questions are put to him. Such a course is specifically permitted under Sections 159 and 160 of the Evidence Act. In Choudhari Ramprasad v. Nathuram, AIR 1923 Nagpur 32, the Nagpur High Court considered the question whether a copy of an unstamped Receipt though inadmissible in evidence, can be used by a witness to refresh his memory by referring to it and held that such a course is permissible.

15. These decisions come to my aid to hold that the course adopted by the Court below is not justifiable and the Court below was incorrect in not permitting the Commissioner to testify any matters mentioned in his report. So, the impugned order is set aside.

Kerala High Court

V.P. Padmanabhan Nair And Ors. vs Grasim Industries, Mavoor And ... on 22 May, 1997

Equivalent citations: AIR 1997 Ker 356

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