Report No. 69
III. Position in England
43.15. Position in England-as to Judicial documents.-
We have noted above the Indian case law as to the scope of section 92. We may now refer to a few English cases relevant to the subject of certain judicial documents. In England, extrinsic evidence is, in general inadmissible to contradict or vary judicial documents. Thus, a country court judgment1 cannot be varied by the judge's notes,2 still less by the informal memoranda or letters of the registrar,3 and the note or certificate of his judgment supplied by a country court judge for appeal is conclusive, and cannot be varied by affidavit or shorthand notes.4
1. Phipson, (1963), pp. 721, 722, para. 1784.
2. Dews v. Ryley, LJCP 264.
3. Stonor v. Fowle, 13 AC 20 (27-28).
4. Huddleston v. Furness Ry, 15 ILR 238 (CA). 5, R. v. Tyrone J., (1917) 2 IR 437.
43.16. In R. v. Tyrone, (1917) 2 IR 437 justices, where out of five justices, only one was recorded as dissenting, The King's Bench Division was held bound by the record, and evidence to show that a decision was not that of the majority was rejected, Campbell L.C. remarking: "In recent cases the court has gone very far in allowing affidavits contradicting matters which appear regular on the face of the record. We are not inclined. to extend that practice."
IV. Question of Amendment Considered
43.17. We now revert to the law in India and should take note of a suggestion made to us namely, that in order that the section may bring out the position more clearly than at present, some change in its wording should be made. The suggestion was that two amendment should be made in the section. So far as bilateral documents are concerned-to which the section certainly applies-the matter should be dealt with first. But the question whether the section should be revised so as to provide that it will extend to unilateral documents where the matter is required by law to be reduced to writing, should also be considered on the merits.
43.18. Recommendation regarding main Paragraph.-
In order to achieve the first object, it was suggested that section 92, main paragraph, should be revised as follows, and made into a sub-section1:-
"92. (1) When the terms of any such contract, grant or other disposition of property as is referred to in section 91 or any matter required by law to be reduced to the form of a document and constituting a transaction between two or more parties, have been proved according to section 91, no evidence of any oral agreement or statement shall be admitted,
(a) as between the parties to any such contract, grant or other disposition of property or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, the terms of the document, or
(b) as between the parties to such transaction, or their representatives in interest, for the purpose of contradicting, varying, adding to or subtracting from the terms of the document in which the matter required by law to be reduced to the form of a document is recorded, as the case may be.
1. Section 92 was to be renumbered as sub-section (1), since a new sub-section is to be inserted, see infra.
43.19. Contradiction of non-dispositive documents.-
Another point concerns the contradiction of matters which are not bilateral and are not contracts, grants or dispositions of property, but are still required by law to be reduced to the form of a document. These are covered by the preceding section, (section 91) and when in respect of them, documentary evidence is given as required by section 91, the question naturally arises whether the documentary record can be contradicted. Important illustrations of such matters are-
(i) confessions of the accused,
(ii) statements of witnesses, and
(iii) other court proceedings-apart from the question of decrees;
(iv) resolutions of companies when required to be in writing.
A separate sub-section was suggested for the purpose. On the merits, it was stated that such a provision is needed, as otherwise the object of the law requiring the matter to be reduced to the form of a document would be defeated. It would be objectionable that a matter required by law to be reduced to the form of a document, not being a bilateral transaction, should be variable by evidence of an oral statement, since the very object of the substantive law in this case is that the written record should be exclusive and conclusive record of the matter in question.
43.20. The suggested sub-section was on the following lines:-
"(2) When any matter required by law to be reduced to The form of a Document, and not constituting a transaction between parties,1 has been so reduced and the document has been proved according to section 91, no evidence of any oral statement shall be admitted for the purpose of contradicting, varying, adding to, or subtracting from the contents of the document."2
1. These words are intended to exclude acts between parties, which are already dealt with in the preceding part of the section.
2. The provisos will appear as provisos to sub-section (1).
43.21. Recommendation.- We have after considerable discussion decided to recommend the change.
43.22. There still remains to be considered one controversy concerning the scope of the section. The controversy relates to the question whether, having regard to section 92, an oral adjustment or variation of a decree can be proved. As has been pointed out separately,1 there is a controversy as to how far section 92 applies to documents which are not bilateral, and that controversy has given birth to the conflict of views regarding adjustment of decrees also. However, we may note that the variation of a decree is a matter of procedure, and not of evidence. Hence, the question does not exclusively relate to section 92. Private persons cannot, by mere agreement, which is a private act vary or modify a judicial act. This is true whether the agreement be oral or written. This was pointed out in a Madras case.2 A decree is a creature of court, and cannot be varied by private act.
1. See discussion relating to section 92 "any matter require..... ", supra.
2. Adappa v. Darbha, AIR 1935 Mad 860: ILR 58 Mad 994 (F8).
43.23. So far as an executing court is concerned, Order 21, rule 2 of the Code of Civil Procedure, 1908, gives very clearly the procedure for recognition of variations, and it is that rule which contains the relevant law of procedure.
43.24. The aspect that the variation of decrees really raises a question of procedure, was lucidly set out in the Madras case.1 It will be useful to quote, in extenso, the relevant observations:-
"A decree does not come within the purview of section 92. A decree is not a creature of consensus but of the court. Only a Court can bring it into existence, and only a Court can vary or nullify it. Even when the parties to a suit compromise the suit, the agreement of compromise does not become a decree until the Court directs the passing of a decree in terms of the compromise. Even where parties adjust a decree, an order of the Court is necessary to give effect to the adjustment; without such an order the adjustment by the parties leaves the decree as it is. A decree or its terms cannot be varied or modified except by the Court; it is a matter of procedure and not of rules of evidence. The parties cannot by their agreement alone vary or modify the terms of the decree, whether the agreement be oral or written.
The rule enacted by section 92 is a rule excluding evidence of oral agreement varying the terms of certain documents, and it implies that but for such exclusion the agreement could in law vary the terms. Where no such variation is possible in law by agreement, whether written or oral, the rule of exclusion of or evidence of oral agreement cannot apply, and this is the case with a decree. The law does not contemplate the possibility of varying decrees of Court by mere agreement between the parties thereto; the mischief against which section 92 is directed could never affect decrees. Attempts to vary the terms of decrees are guarded against not by any rule of evidence but by rules of procedure, such as those relating to amendment of decrees, appeal, review, and execution of decrees."
We now proceed to consider the provisos to the section.
1. See discussion relating to section 92 "any matter require.",supra.