Report No. 185
The Section bears the heading 'using, as evidence, of document, production of which was refused on notice'. It reads as follows:
"164. When a party refuses to produce a document which he has had notice to produce, he cannot afterwards use the document as evidence without the consent of the other party or the order of the Court."
There is an illustration below Section 164. It reads as follows:
"A sues B on an agreement and gives B notice to produce it. At the trial, A calls for the document and B refuses to produce it. A gives secondary evidence of its contents. B seeks to produce the document itself to contradict the secondary evidence given by A, or in order to show that the agreement is not stamped. He cannot do so."
Under Illustration (g) to Section 114 of the Evidence Act, the judge may also presume that the document withheld is unfavourable to the party who does not produce it. Under Section 89, there is a presumption that the document called for and not produced was attested, stamped and executed in the manner required by law. It was observed in Doe v. Cockell, (1834) 6 C&P 527: "You must either produce a document when it is called for or never."
In Sham Das v. R: 36 CWW 1127, a doubt was raised as to whether Section 164 was applicable to criminal proceedings. It was suggested to the Commission which prepared the 69th Report that the Section be amended to confine it to civil proceedings. The Commission declined to do. We are also of the same view.