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Report No. 185

Section 89

This section relates to the 'presumption as to due attestation, stamp law conformance and execution in the manner required by law of documents not produced, in spite of notice to produce. It reads as follows:

"89: The Court shall presume that every document, called for and not produced after notice to produce, was attested, stamped and executed in the manner required by law."

The notice to produce referred to in the section has to be read in conjunction with Section 65(a) and Section 66. The presumption is of course, rebut , though the Court is initially bound to draw it. The presumption does not extend to the correctness of contents of the document.

The section is founded on the maxim, 'omnia praesumuntur contra spoliatoren'. It is based on the principle that nobody shall be allowed to take advantage of his own wrong. A similar principle is laid down in several English cases (Crisp v. Anderson: 1 Stark 36; Tay ss 177, 148, where a document requiring stamps is lost, or not produced upon notice, it will, in the absence of evidence to the contrary, be presumed to have duly stamped; but where it is shown to have been unstamped, it will be presumed to have so continued until the contrary is proved: (Closmadeuc v. Carrel 18 C.B. 36; Marine Investment Co. v. Haviside: L.R.5 HL 624; see also Raja of Bobbili v. Inuganti: 26 I.A. 262 (P) and Ahmed Raza v. Saiyid Abid: 43.IA 264 (P-C).

Once the plaintiff excuses himself from producing on the plea that the document is not traceable or is lost, the question of giving notice for production does not arise: Manilal v. Surat Mun : AIR 1978 Guj 193.

In the 69th Report, it was stated that the section does not require any amendment. We agree.

Review of the Indian Evidence Act, 1872 Back

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