C H SHAH Vs. S S MALPATHAK

JUDGEMENT

(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, 61 Bom LR 58 at pp. 66-67 = (AIR 1957 SC 857) 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 at 8-9 (PC) 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, 46 Bom LR 844 at p. 848 = (AIR 1944 PC 54) 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.