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Party can't be compelled to admit or deny photocopied docs 
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Party can't be compelled to admit or deny photocopied documents in his/ her cross examination- Delhi High court

Suraj Parkash vaid vs union of India 1976(78) PLR Delhi

Equivalent citations: AIR 1976 Delhi 279, 12 (1976) DLT 82

Suraj Parkash Vaid vs Union Of India And Ors. on 12 January, 1976
Equivalent citations: AIR 1976 Delhi 279, 12 (1976) DLT 82
Author: B Misra
Bench: B Misra

(1) This revision petition has been filed by the plaintiff under Section 115 of the Code of Civil Procedure, against the order of the Sub-Judge 1st Class, dated 15th October, 1974, by which he has declined the request of the plaintiff to order the defendants to admit and/or deny the documents under Order 12 Rule 2 of the Code while the learned Judge has directed the plaintiff to produce their certified copies.

(2) The petitioner has instituted the suit giving rise to the revision against the Union of India, the Registrar of the Supreme Court and the Chief Justice of India for recovery of Rs. 6.000.00 as damages for wrongful reduction in rank in the employment of the petitioner in the Supreme Court. The petitioner was reduced in rank and then finally removed from service. Another suit was instituted by the petitioner attacking the aforesaid two orders. I am told that the court of first instance dismissed the said suit, but the lower appellate court held that the removal from service was valid, while the reduction in rank was legally infirm. I am also informed that feeling aggrieved by the said decree, the plaintiff petitioner has instituted a second appeal in this court in which he has challenged the decree upholding his removal from service. In view of these circumstances, the present suit has been instituted on 30th September, 1970 claiming damages for wrongful reduction in rank while the other is still pending.

(3) It appears that a number of documents were filed in the aforesaid suit (which is pending in second appeal in this court). The petitioner in the instant suit has filed unsigned copies of a number of documents from the said file and has moved two applications before the court below praying that under Order 12 Rule 2, 3A of the Code, the defendants be called upon to admit and/or deny the documents. The applications also appeared to be headed under Order 12 Rule 4 and Order 17 Rule 3, but the counsel for the petitioner is unable to state if the said provisions of law have got any relevance to the subject matter raised in the revision.

(4) The applications were opposed by the defendants and it was averred that the documents filed were neither originals nor certified copies not did the defendants possess them (with a few exception), and so they could not be put to the defendants for the purpose of admission and or denial. With regard to production of documents, it was contended that the proper procedure for discovery and inspection had not been followed. On the merits, it was urged that the defendants had very few letters of the plaintiff in their possession, which they could admit and or deny ; then the court ordered the defendants to produce documents, they possessed, (5) With regard to admission and/or denial of the unsigned copies of the documents, the court upheld the objection of the defendants- respondents that the documents filed must be certified copies from the records of the other suit before the defendants could be called upon to admit and/or deny them and under the circumstances the court gave another opportunity to the plaintiff to file authenticated copies of the documents, but it did not finally dispose of the applications pending the filing of the said documents.

(6) Mr. Nijhawan has relied upon the provisions of Order 12 Rules 2 and 3A of the Code in support of his contention and he has urged that the documents, which the opposite party can be called upon to admit and/or deny need not be a certified copy and if the party admits the same, document will be read in evidence and if the party denies the document the costs will be borne by the opposite party.

(7) Order 12 Rule 2 of the Code of Civil Procedure reads as follows :-

"2.Either party may call upon the other party to admit any document saving all just exceptions ; and in case of refusal or neglect to admit, after such notice, the costs of proving any such document shall be paid by the party so neglecting or refusing, whatever the result of the suit may be, unless the Court otherwise directs ; and no costs of proving any document shall be allowed unless such notice is given, except where the omission to give the notice is, in the opinion of the Court, a saving of expense."

Rule 3A has been inserted by the amending Act, 66 of 1956 and the same reads as follows:

"3A.Notwithstanding that no notice to 'admit documents has been given under rule 2, the court may, at any stage of the proceedings before it, of its own motion, call upon any party to admit any document and shall, in such a case, record whether the party admits or refuses or neglects to admit such document".

Rule 3 of Order 12 has prescribed a form, in which 'notice is to be served on the opposite party. The form is No. 9 contained in appendix C, the material portion of which reads as follows :

"TAKEnotice that the plaintiff (or defendant) in this suit proposes to adduce in evidence the several documents hereunder specified, and that the same may be inspected by the defendant (or plaintiff) his pleader or agent, at ....on .....between the hours of......; and the defendant (or the plaintiff) is hereby required, within fourty-eight hours from the last-mentioned hour, to admit that such of the said documents as are specified to be originals were respectively written, signed, or executed, they purport respectively to have been; then such as are specified as copies are true copies ; and such documents as are stated to have been served, sent or delivered were so served, sent or delivered, respectively, saving all just exceptions to the admissibility of all such documents as evidence in this suit."

A perusal of the provision of law shows that notice is to be given to the the opposite party or in case provided by Rule 3A without auch notice calling upon it to admit or/deny such documents. The penalty provided is that in case of refusal or neglect to admit the document, the cost of proving it are to be borne by the negligent party irrespective of the result of the suit. There is, however, a fallacy in the submission of the learned counsel. The costs that are sought to be saved under the aforesaid provision for admission and/or denial are those which are incurred in proving the document. The costs that a party has to incur in procuring the document on the court file are not covered by the provisions specified in Rule 2 of Order 12 of the Code. although the same may or may not form the general costs in the suit.

(8) In my opinion, the word 'document' occurring in Order 12 and as indicated by the form of notice, has a reference to a proper document produced before the court, on which the court can legally act and which can be adduced in evidence. The opposite party cannot be called up to take the trouble of admitting and/or dening the documents, which are not proper and which by their very nature cannot be acted upon or be legally adduced in evidence without such admission and/or denial (since the admission or denial is not a matter of routine, but is to be performed with the responsibility of a litigant assisting in the administration of justice and with the penal consequences attached to erroneous refusal to admit.) Mr Nijhawan submits that the word 'document' is defined in Section 3 of the Evidence Act in wide terms. It is difficult to appreciate if the defintion of document contained in the Evidence Act has any relevance, but I have found that the 'document' is also defined by Section 3 of the General Clauses Act, 10 of 1897, as including 'any matter written, expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means which is intended to be used, or which may be used, for the purpose of recording that matter." This definition of document is more or less the same as given in the Evidence Act, but is rather wider as it is inclusive and in any event the definition as given in the General Clauses Act would apply to the expression "document" occurring in the Code of Civil Procedure and all other statutes unless a contrary intention be expressed.

(9) The question that is raised before me is not whether the piece of paper which contained unsigned copy of some letter is or not a document. It is certainly a document within the expression occurring in the General Clauses Act, but that is not sufficient to clothe the plaintiff with a right to call upon the opposite party to admit and/or deny the same at the peril of costs. As observed earlier, the document in this context, means a proper document on which the Court can legally act and which can legally be adduced in evidence without any admission on the part of the opposite party. Supposing a document requiring stamp and registration is unstamped or unregistered and cannot be brought on the file, no party is unless the defect is cured bound to admit or deny it, nor document the receipt of which by the court's prohibited by law be put to the opposite party.

(10) Incidentally, the documents in dispute are contained in the file of another suit. Therefore, the documents which are to be adduced in evidence in the present suit must be either primary evidence or secondary evidence. Primary evidence will be the original documents taken out of the record of that suit and produced here, and the secondary evidence which is permissible in such cases is, in view of Section 65 of the Evidence Act, only a certified copy of the document and the statute provides that no other kind of secondary evidence would be admissible. The receipt of plain unsigned copy of such document is forbidden by law. The court was, therefore, fully justified in not acting upon the unsigned plain copies of those documents which are on the judicial file of another court and the plaintiff was, properly asked to produce the elevant certified copies. The plaintiff could also take steps to have the originals produced before the court in accordance with the prescribed procedure. In any event, only when the documents on which the court can legally act and which the plaintiff wishes to adduce in evidence and the production of which is not forbidden have been produced before the court, the opposite party can be called upon to admit and/or deny the same and if it refuses or neglects to admit them, then the costs of proving the documents, (as distinguished from costs of procuring or producing the document will have to bs borne in accordance with Order 12 Rule 2 of the Code of Civil Procedure.

(11) Mr. Nijhawan has lastly submitted that by giving this interpretation, some words are being added to statute. This submission of the learned counsel is not tenable. In State of U.P. v. C. Tobit, the Supreme Court, was construing the expression 'copy 'of the judgment or order under appeal occurring in Section 419 of the Code of Criminal Procedure, as was applicable then. The words in the statute were to the effect "every appeal ....... shall be accompanied by a copy of the judgment or order appealed against". The contention raised before the Court was that the party was entitled to file a plain copy of the judgment, si ace the expression 'certified' or 'authenticated copy did not occur in the statute. The Supreme Court repelled the contention and observed that the intention of the provisions was that the copy filled before the court of appeal must be an authenticated copy under Section 76 of the Act and, therefore, the expression 'copy' meant a certified copy which ipso facto and ex fade assured the appellate court of its correctness.

(12) In this decision, the Supreme Court observed on page 1278 that the rule of law laid down in Maxwell's Interpretation of Statutes, 10th Edition page 52, was that "the words of statute, when there is doubt about their meaning, are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the Legislature was in view. Their meaning is found not so much in a strictly grammatical or etynological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the subject to be attained."

(13) Applying the aforesaid rule to the question raised before me, I am of the view that the documents which the party can upon the opposite party to admit and/or deny must be the proper documents the production of which is by its very nature not forbidden and on which a Court can legally act and which can legally be adduced in evidence. In the instant case, the law prohibits production of the copy except certified copy as secondary evidence of the original and so the petitioner cannot call upon the opposite party to admit or deny any other kind of secondary evidence. Each party must bear the initial cost of procuring the proper document and producing it before the court and then alone it call upon the opposite party to admit and/or deny the same and thereby attempt to save the costs of proving the documents. Should the opposite party have some original document in its possession, it is open to a party even to produce its true copy and ask for its ad mission. However, in a case where the original is not in the possession of either of the parties and the copy produced is neither authenticated nor legally admissible as secondary evidence, the opposite party can. if it objects, not be called upon to admit and/or deny the document which cannot be adduced in evidence. Should a party instead of objecting, consent to admit, and admit the document, the court may be enabled to act upon it. But, this is a special procedure adopted in civil cases in the interests of justice, where consent of the parties cures the irregularity but not illegalities. However, where a party refuses to admit and/or deny any such improper document, which cannot be adduced in evidence, the court cannot call upon it to do so at the peril of facing the consequences. The application made by the party under Order 12 Rule 2 or Rule 3A must, therefore, be dismissed. In the instant case, I do not find any jurisidictional or legal error in the impugned order and the order calling upon the petitioner to file certified copies of the documents is, in my opinion, legal and valid and does not call for interference. The revision is accordingly dismissed. Costs of the revision will abide by the result of the suit.

Wed Jun 01, 2016 12:46 pm
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