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139. "No documentary evidence in the possession or power Effect of
of any party which should have been, but
non-production of documents. has not been, produced in accordance with the requirements of section 138, shall be received at any subsequent stage of the proceedings unless good cause be shen to the satisfaction of the Court for the non-productiont hereof, and the Judge receiving any such evidence shall record his reasons for so doing.
Act VIII of 1859, section 128. This section applies to H. C. and P. S. C. C.
The parties are not entitled to adduce fresh documentary evidence after the issues in the case have been settled, if it has been in their power or possession ; but they may tender it subsequently, stating the grounds upon which it was not tendered at, an earlier -stage, and it remains for the Judge to admit or reject the application. In either case the grounds on which he acts should be stated on the record and must be so stated if the evidence is received-Watson & Co. vs. Kunhye, 9 W. R., 294. In dealing with applications under this section, it should be borne in mind that the main object of it is to prevent the fabrication of evidence during the trial, to meet those unexpected questions which sometimes arise, that it is limited to documents within the power or possession of the parties, and that it never was intended to allow, without leave, the production of any more documentary evidence than had been already filed at the first hearing-Gour Äuree vs. Pran Huree, 21 W. R., 42. But the Court should call upon the parties to produce, or else the stringent terms of the following sections will not be enforced. Where a party who had not been called on by the Court, tendered documentary evidence the day after the issues had been framed, and there was nothing in the statement drawn up when fixing the issues shewing that any documents had been called for, it was held the evidence should have been received-Mahbub Hossein vs. Patasu, 1 B. L. R., 127.
140. The Court shall receive the documents respecDocuments to
be tively produced by the parties at the first received by Court. hearing :
Provided that the documents produced by each party be accompanied by an accurate list thereof prepared in such forin as the High Court may from time to time direct. The Court may at any stage of the suit reject any docu
ment which it considers irrelevant or otherRejection of irre. levant or inadmissible wise inadmissible, recording the grounds of documents.
such rejection. Act VIII of 1859, section 129. This section applies to H. C. and P. S. C. c.
Reject. -The Judge, having called on the parties to produce their documentary evidence, most receive every document tendered by the parties; and, having inspected them, return such as he considers evidently irrelevant or inadmissible-Roshun Jehan vs. Inayut Hossein, Marsh., 127 ; or, if for want of time he is unable to inspect or consider them, he may allow them to be filed, and inspect and reject them afterwards --Soodukhina vs. Raj Mohan, 11 W. R., 350. The documents retained by the Court cannot be used in evidence or put on the record until properly proved or admitted as provided in section 141, infra.
Where Sanction is Necessary.-Where anything must be done to obtain a docu ment, it must be done by the party requiring it. Thus the party, and not the Court, must obtain the sanction of Government to an officer in the Telegraph Department producing a copy of a message that passed through his office--Lekhraj vs. Pale Ram, 2 Alla., 210.
Appeal.-No appeal lay from an order rejecting documents, nor can it be interfered with under the Charter Act--In the matter of Erskine, Petitioner', 18 W. R., 511 ; but it may be impugned on appeal from the final decree.
141. (1) Subject to the provisions of the next followEndorsements on doing sub-section, there shall be endorsed on cuments admitted every document which has been adınitted evidence.
in evidence in the suit the following particulars, namely :
(a) the number and title of the suit,
(d) a statement of its having been so admitted, and the endorsement shall be signed by the Judge.
(2) If a document so admitted is an entry in a book, account or record and a copy thereof has been substituted for the original under the next following section, the particulars aforesaid shall be endorsed on the copy and the endorsement thereon shall be signed by the Judge.
Act VII of 1888, section 13. This section applies to H. C. and P. S. C. C. It and the three following sections have been substituted by Act VII of 1888, section 13 for sections 141 and 142 of Act XIV of 1882.
A Copy Thereof.—This refers to section 62, ante-See also ? W. R., Civ. Cir., 7, approved of by the Privy Council in Brojosoondery Debea vs. Luchmee Koonwaree, 20 W. R., 95.
Documents how Proved.-In dealing with documentary evidence, the substantial principles on which the authenticity and value of evidence rest should be observed by the Judge--Rama Lakshmi vs. Sivanantha Perumal, 14 Moore, 570, p. 588. He should not, for instance, accept secondary evidence without a sufficient reason why the original has not been produced-id. ; Ram Gopal vs. Gordon Stuart, 14 Moore, 453, p. 461; Abbas Ali vs. Yudeen Ramy, 3 Moore, 156 ; nor documents as proved, because they have not been denied by the opposite party—Kirteebash vs. Ramdhun, B. L. R., F. B., 659; Reazoonissa vs. Bookoo Chowdhrain, 12 W.R., 267. 141A. (1) If a document adinitted in evidence in the
suit is an entry in a shop-book or other acEndorsements copies of admitted en
count in current use, the party on whose tries in books, accounts behalf the account is produced may furnish and records.
a copy of the entry. (2) If such a document is an entry in a public record produced from a public office or by a public officer, or an entry in a book or account belonging to a person other than a party on whose behalf the book or account is produced, the Court may require a copy of the entry to be furnished
(i) where the record, book or account is produced on behalf of a party, then by that party, or
(ii) where the record, book or account is produced in obedience to an order of the Court acting of its own motion, then by either or any party,
(3) When a copy of an entry is furnished under the foregoing provisions of this section, the Court shall, after
causing the copy to be examined, compared and attested in manner mentioned in section 62, mark the entry and cause the book, account or record in which it occurs to be returned to the person producing it.
Act VII of 1888, section 13. This section applies to H. C. and P. S. C. C.
Unstamped Documents.-Unstamped documents, or secondary evidence of them should not be received without payment of the stamp and penalty-Haran Chunder vs. Russick Chunder, 20 W.R., 63 ; but if such evidence has been admitted in the first Court, it should not be rejected by the Appellate Court. Nor will it ordinarily form a good ground for special appeal. See note on sectiou 140, ante.
Unregistered Documents.-An unregistered document is admissible for the purpose of obtaining specific performance and secondary evidence of it is admissible if it remained unregistered without any fault of the plaintiff-Nagappa vs. Devu, I. L. R., 14 Mad., 55; Bank of Bengal vs. Mackertich, I.L. R., 10 Cal., 315; Burjorji vs. Muncherji, I. L, R., 5 Bom., 143.
Altered Documents.-If a document appears to have been altered, the onus of proving its genuineness lies on the party claiming under it. If he can shew the nature of the document in its original state and account for the alteration, it is admissible. Thus, where a deed was tampered with, while in the custody of the record-keeper, their Lordships of the Privy Council admitted it, saying: “ It may be conceded that in an ordinary caso the party who presents an instrument which is an essential part of his case in an apparently altered and suspicious state must fail from the mere infirmity or doubtful complexion of his proof, unless he can satisfactorily explain the existing state of the document. But this wholesome rule admits of exceptions if there be, independently of the instrument, a corroborative proof strong enough to rebut the presumption which arises against an apparent and presumable falsifier of evidence. And such corroborative proof will be greatly strengthened if there be reason to suppose that the opposite party has withheld evidence which would prove the original condition and import of the suspected document. Moreover, the peculiarity of the present case is that one of the issues to be determined is, what was the condition of the document when first produced by those who claim under it. The appellants may fairly contend that the rule above stated is not applicable to them until the question has been decided against them."-Khoob Conwur vs. Moodnurain, 9 Moore, 1, p. 17. See also Garrard vs. Lewis, 10 Q. B. D., 30; Suffel vs. Bank of England, 7 Q. B. D., 270; 9 Q. B. D., 555; Leeds Bank vs. Walker, 11 Q. B. D., 84; and see Venkatesh vs. Baba Subraya, I. L. R., 15 Bom., 44; Govindsami vs. Kuppusami, I. L. R., 12 Mad., 239; Ramayyar vs. Shanmugam, I. L. R., 15 Mad., 70, and the cases cited.
Translation.– The High Court has allowed the interpreter sometimes to translate a vernacular document vivå roce when the expense of translation would be very great, and the necessity of a translation arose from unforeseen circumstances-Sereavy Mistree vs. Cally Kinker Paulet, Fulton, 22.
142. When a document relied on as evidence by either Endorsements on do- party is considered by the Court to be cuments rejected as in- inadmissible in evidence, there shall be admissible in evidence.
endorsed thereon the particulars mentioned in clauses (a), (b) and (c) of section 141, sub-section (1), and a statement of its having been rejected, and the endorsement shall be signed by the Judge. Act VII of 1888, section 13. This section applies to H. C. and P. S. C. C.
142A. (1) Every document which has been admitted Recording of admit
in evidence, or a copy thereof where a copy ted and return of re- has been substituted for the original under jected documents.
section 141A, shall form part of the record of the suit.
(2) Documents not admitted in evidence shall not form part of the record and sball be returned to the parties respectively producing them.
Act VII of 1888, section 13. This section applies to H. C. and P. S. C. C.
Documents which have not been proved but simply filed, as often happens in the mofussil, the Judge should pass over them as upproved, although it is the duty of the pleader for the opposite party to insist that they should not remain on the record at all-Kallida Pershad vs. Ram Hari, I. L. R., 5 Cal., 317; and where in the course of argument on appeal certain letters were tendered in evidence, which had not been marked or noted in the judgment, it was held they were not admissible, as no documents, though admitted in the answer to the notice to admit, were evidence unless put in at the trial and formally marked by the Registrar-Watson vs. Rodwell, 11 C. D., 153. But see note under section 187, post.
Admitted.-But if the opposite party when called on, states that he is not prepar ed to deny their genuineness, it appears they may be accepted without formal proofIndro Bhoosum vs. Goluck Chunder, 12 W.R., 350 ; contra-Kirteebash vs. Ramdhun, B. L. R. (F. B.), 659; but if the plaint and issues assume a document to have been executed, and raise questions depending
only on that assumption, it need neither be proved nor filedBurjorji vs. Muncherji, I. L. R., 5 Bom., 143.
Several Parties.-The admission of one party cannot affect another-- Kali Dutt vs. Sheikh Abdool, 16 Ind. App., 96, p. 103. 143. Notwithstanding anything contained in section
62, section 141 A, sub-section (3.), or section Court may order any document to be im- 142A, sub-section (2), the Court may, if pounded.
it sees sufficient cause, direct any document or book produced before it in any suit to be impounded and kept in the custody of an officer of the Court for such period and subject to such conditions as the Court thinks fit.
Act XIV of 1882, section 143, as amended by Act VII of 1888, section 14. This section applies to H. C. and P. S. Č.C. 144. In suits in which an appeal is not allowed, when
the suit has been disposed of, and in suits When document admitted in evidence may in which an appeal is allowed, when the be returned.
time for preferring an appeal from the decree has elapsed, or, if an appeal has been preferred, then after the appeal has been disposed of, any person, whether a party to the suit or not, desirous of receiving back any document produced by him in the suit and placed on the record, shall, unless the document is impounded under section 143, be entitled to receive back the same : Provided that a document may be returned at any time
before either of such events, if the person When document may be returned before time applying for such return delivers to the
proper officer a certified copy of such document to be substituted for the original :
Provided also that no document shall be returned which, Certain documents by force of the decree, has become void or not to be returned. useless.
for returned document,
On the return of a document which has been admitted in Receipt to be given evidence, a receipt shall be given by the
party receiving it in a receipt-book to be kept for the purpose. Act VIII of 1859, sections 135-7. This section applies to H. C. and P. S. C. C.
145. The provisions herein contained Provisions
as to documents shall, so far as may be, documents applied 'to material objects. apply to all other material objects producible
This section applies to H. C. and P. S. C. C.
OF THE SETTLEMENT OF Issues. 146. Issues arise when a material proposition of fact or
law is affirmed by the one party and denied Framing of issues.
by the other. Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue.
Each material proposition affirmed by one party and denied by the other must form the subject of a distinct issue.
Issues are of two kinds : (a) issues of fact, (6) issues of law.
At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and after such examination of the parties as may appear necessary, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to the Court to depend.
When the issues both of law and of fact arise in the same suit, and the Court is of opinion that the case may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined.
Nothing in this section requires the Court to frame and record issues when the defendant at the first hearing of the suit makes no defence.
Act VIII of 1859, section 139. This section applies to H. C.
The law gives no power to summon the opposite party to give evidence on the settle. ment of issues- Anund Chunder Banerjee vs. Woomesh Chunder Roy, 1 Hyde, 147; but