Report No. 69
Documents Not Produced After Notice
95.1. The last section discussed was concerned with the document which is produced after notice and is inspected by the party giving notice. Section 164 deals with a situation where a document is not produced, though notice has been given. In the last section, the act was positive and the consequence of the act was also positive.
The document having been called for the inspection, the party calling for the same is bound to use it as evidence, if certain conditions are fulfilled. In section 164, on the other hand, the act of the party is negative, and so also is the consequence. When a party does not produce a document which he has had notice to produce, he cannot afterwards use the documents as evidence without the consent of the other party or the order of the court. This is what the section provides.
The illustration to section 164 takes the case where A sues B on an agreement and gives B notice to produce it (i.e. the document containing the agreement.) At the trial, A calls for the documents 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. Of course, the illustration assumes that the other party has not consented and that the court has not given permission for use of the document, thus relaxing the section.
95.2. The effect of this section is that where an opponent in possession refuses to produce a document on demand, he is also prohibited from producing it for contradicting the evidence which may have been tendered by the other party by way of permissible secondary evidence, or by way of proof of the fact to which the document relates. This provision may sound harsh; but, it has been explained1 that while, in a sense, it is an appropriate "penalty" for unfair tactics, the original refusal may also be regarded as an admission, in advance, for the purpose of the particular judicial proceedings, of the correctness of the first party's evidence to this extent.
1. Wigmore, cited in Field.
95.3. There is also the presumption that evidence which could be produced and is not produced would not be favourable to the party who withholds it. The principle was stated in an English case1 in these terms:-
"You must either produce a document when it is called for, or never"
1. Doe v. Cockell, (1834) 6 C&P 525 (528) (Alderson B.).
A party thus is not permitted, after declining to produce a paper, to put it in evidence after it has been proved by his opponent by parol. If he is to be allowed to do so, he would be able to hold back the paper, until he saw whether its parol rendering would be favourable or unfavourable to him, and thus to obtain an unjust advantage over his opponent. The same rule is applied when the party calling for the paper has proved a copy, in which case the holder of the paper cannot produce it and object to the reading of it without proof by an attesting witness. Nor can be after refusing to produce, put the paper in to the hands of his opponent's witness for the cross-examination of produce and prove it as part of his own case1. He is, in effect, bound by any legal and satisfactory evidence produced on the other side2.
1. Wharton Evidence, S. 157; Taylor Evidence, S. 1818; Burr-Jones Evidence, sections 117, 223, cited in Woodroffe.
2. Norton Evidence, p. 252, cited in Woodroffe.
95.5. Secondary evidence.-
It would appear that the party who does not produce a document in his possession cannot be allowed to prove the contents by secondary evidence also. It was so held in a Madras case1. This, with respect, seems to be a correct view. When section 164 speaks of using the document "as evidence", it includes secondary evidence also. The party refusing can produce neither primary nor secondary evidence. In fact, it is the other party (which gave notice to produce) that becomes entitled to give secondary evidence-the illustration to the section would at least appear to assume this. It would be of interest to note that this principle was applied, in an early English case2, to a chattel, where a party was determined to keep back a chattel.
1. Sivasubramania v. Tirthapaty, AIR 1933 Mad 451.
2. Davies v. Hurtley, 7 C&P 405.
95.6. It remains now to refer to another provision1 under which there is a presumption that a document called for and not produced after notice was attested, stamped and executed in the manner required by law.
1. Section 89.
95.7. Section 164-Applicability to criminal trials.-
The question whether this section applies to criminal proceedings1-2 has been the subject-matter of some discussion.
1. Woodroffe and Amir Ali Evidence, (1969), Vol. 3, p. 1812.
2. See discussion in Sham Das v. Emperor, AIR 1933 Cal 65 (66), (left-hand): II.R 60 Cal 341 (Panckridge J.).
95.8. It was suggested to us that it may be better to add the words "to a civil proceeding" after the words "when a party" in section 164 and thereby to limit its scope. We do not, however, consider it necessary to make any such change.