Report No. 69

Note of Dissent of Shri Mitra

Regarding Recommendations Relating to Section 23 and Section 68 of the Evidence Act

I regret my inability to agree with the recommendations of the majority of the Commission regarding proposed amendments relating to: (a) insertion of Explanation 2 to section 23 of the Act, and (b) section 68 of the Act. My dissent is based on questions of principle involved in the proposal to amend the sections noted above, and not merely because I take a different view with regard to the form in which the amendments have been proposed. I am recording my dissenting views after very careful and anxious consideration of the proposed amendments, and had it not been for the fact that in my view questions of principle are involved, I would have been happy to agree with the views of the majority of the Commission.

Section 23

Section 23 says that "In civil cases no admission is relevant if it is made either upon an express condition that evidence of it is not to be given or under circumstances from which the court can infer that the parties agreed that evidence of it should not be given." This means that if an admission is made either on an express agreement that evidence of such admission should not be given or the circumstances enable the court to draw an inference that the parties agreed together that evidence should not be given, such admission would not be relevant.

In other words, where the parties have expressly agreed net to give evidence of any admission or the admission has been made in circumstances which would enable the court to draw an inference to that effect, evidence of such admission would not be given in court. The provision makes it clear that evidence of admission is to be excluded firstly when there is an express agreement and secondly where the court can draw an inference that there is an agreement between the parties to that effect. In all other cases, admission would be relevant.

By the proposed Explanation 2, what is sought to be provided is that where an admission is made for the purpose or in course of settlement or compromise of a disputed claim, the parties should be deemed to have agreed that evidence of the admission shall not be given. In other words, whenever there is negotiation for compromise and an admission is made by one or both parties, they should be deemed to have agreed that evidence of admission shall not be given.

It means that every case of negotiation for settlement or compromise will be hit by the explanation, provided of course admission is made by one or both parties. In every case of negotiation for settlement or compromise, the parties do make admission of various matters in dispute for the purpose of compromise. The suggested amendment would mean that whether the parties had agreed or not, whether the court can draw an inference or not, as provided in the original section, the parties shall be deemed by the court to have agreed that evidence of the admission shall not be given.

In my view, if the suggested explanation is included in the section, Order 23, rule 3 would become altogether otiose and will be rendered in fructuous. This rule says that "Where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or compromise-the court shall order such agreement, compromise or satisfaction to be recorded and shall pass the decree in accordance therewith so far as it relates to the suit." I shall refer to the amendment of the rule later. The first matter to be noticed is that the adjustment between the parties may be with regard to the whole or part of a suit.

The second matter to be noticed is that if the proposed Explanation is included, no application can ever be made to the court for the purpose of recording the compromise as required by the rule. It may be said that this rule can be invoked only when there has been a concluded agreement between the parties and in no other case. That is to say, that the rule can be invoked only when there is not only admission regarding the matters in dispute, but the negotiations have ultimately resulted in a concluded agreement in writing signed by the parties.

In my view, however, the Rule can be invoked not only in a case of concluded agreement but can be invoked whenever there is a dispute between the parties that the agreement in writing signed by them is not a valid agreement between the parties. It must be noticed that the Rule is invoked only when there is a dispute between the parties as to whether there is an agreement adjusting the claims of the parties to the suit. Indeed, if there is no such dispute there would be no scope for invoking or attracting this Rule. Because, if there is no dispute with regard to the agreement, all that the parties have to do is to file a compromise petition regarding the terms of the agreement.

It is because disputes may and do arise between the parties, as to the validity and binding character of an agreement, that provision has been made by the Rule enabling parties to come to court for adjudication on the question whether there has been a valid binding agreement adjusting the claims between the parties. If it is provided by law that in every case where the parties negotiate for a settlement of their disputes in the suit, they must be deemed to have agreed that evidence of admission made in the course of negotiations shall not be given, no application can ever be made under Order XXIII, Rule 3 of the Code.

When parties negotiate for a settlement they may expressly agree that any admission made by either of them should not be given as evidence, or there may be circumstances which makes clear to the court that that was an agreement between the parties although there was no express stipulation of that effect. If that is so, then section 23 would cover such cases.

But where parties proceed to negotiate for a settlement and there is neither any express stipulation that evidence of admission would not be given, nor are there any circumstances to indicate that there was such an agreement between the parties, if a dispute arises between the parties at a later stage as to whether there has been a valid agreement or not, the parties would be debarred from making an application under Rule 3, even though they have a right to come to the court and seek the court's adjudication on the question as to whether there has been a valid agreement.

In my view, inclusion of Explanation 2 would not only render Order XXIII, Rule 3 altogether nugatory, but the parties to the suit who have negotiated a settlement would be deprived of an valuable right to which they are entitled under the provisions of the Civil Procedure Code. I will now turn to the amendment to the Code of Civil Procedure, and see if the amendment makes any difference to the situation I have mentioned above. The material amendment to Rule 3 of Order 23 is as follows:-

"After the words 'lawful agreement or compromise' the words 'in writing and signed by the parties' shall be inserted."

Therefore, the Rule after amendment would read as follows:-

"Where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties or where the defendant satisfies shall pass a decree in accordance therewith so far as it relates to the suit."

As I read it, the amendment noted above makes no difference to the position stated by me in the preceding paragraphs. All that the amendment requires is that the lawful agreement and compromise of the parties to the suit shall be in writing and signed by them. Prior fo the amendment the alleged agreement or compromise could possibly have been either verbal, or could have been contained in a series of correspondence between the parties. That would no longer be possible. The agreement must be in writing and signed by the parties after the amendment. This, in my view, leaves the question of relevance of admissions made during the course of negotiations untouched. One example will make it quite clear:-

"A sues B for recovery of Rs. 20,000 as damages for trespass to A's property. B defends the suit but thereafter enters into negotiations for settlement of the dispute in the suit. After protracted negotiations, in course of which B admits he wrongfully trespassed into A's property and agrees to pay to A Rs. 10,000 as damages instead of Rs. 20,000 claimed in the suit. The terms of settlement are drawn up as follows:-

1. B admits that he wrongfully trespassed into A's property.

2. B would pay to A Rs, 10,000 as damages for the trespass.

3. Disputes between the parties are settled on the terms mentioned above and neither party has any further claim against the other. Each party to pay its own cost.

After the agreement mentioned above is drawn up, it is signed by both the parties. If after the agreement is signed by the parties there is no further dispute between the parties, all that remains to be done is to file an application in the court and have a decree passed on these terms. But supposing B disputes the agreement and refuses to sign a compromise petition for filing the terms. A then will have to file an application under Order XXIII, Rule 3 in which he should state that B has admitted the wrongful trespass and has agreed to pay Rs. 10,000 as damages. He would also have to file a copy of the agreement in writing signed by the parties before the court.

But if the proposed Explanation 2 becomes law, then B will be rightfully entitled to contend that evidence of the admission of trespass made by him in course of negotiations and subsequently reduced into writing in the terms of settlement cannot be given and the court should take no notice of the admissions made by him and recorded in the terms. If Explanation 2 becomes law, no other alternative course would be available to A whose application for recording the terms of settlement must necessarily fail. In this view of the matter, no application can ever be made under Rule 3, if the proposed Explanation 2 becomes law.

The written agreement or settlement between the parties in all probability may contain admissions and concessions by a party who ultimately agrees to settle the dispute, but such admissions can never be looked into by the court because no evidence of it can be given as the party would be deemed to have agreed not to give the evidence of the same. For the reasons mentioned above, the proposed Explanation 2 to section 23 of the Act should not become law.

Section 68

I now turn to the proposed amendment of section 68. The effect of the proposed amendment is that Wills apart, with regard to all other documents which are required by law to be attested, it will no longer be necessary to call an attesting witness in order to prove execution of the document as at present provided by the section. The section says that if the document is required by law to be attested it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution.

The necessity of calling an attesting witness in the case of a document (other than a Will) to prove the execution of the document is now proposed to be dispensed with. It is to be noticed that the provisions of section 68 are mandatory in nature and the document in question cannot be used as evidence, until the attesting witness is called for the purpose of proving the execution of the document. What is now proposed is that with regard to all documents other than Wills, which are required to be attested, it will no longer be necessary to call the attesting witness.

My dissent to the recommendations is based on two grounds. The first is that the recommendation violates a cardinal principle of the law of evidence, namely, that the best evidence shall be produced before the court. In the case of a document required to be attested by law, the best evidence of execution of such a document is the evidence of the attesting witness. He alone is the person who in law can prove the execution of the document. According to the recommendations, he need not be called as a witness, but the document may be proved by the evidence of other witnesses, if necessary.

In my opinion, this recommendation will have the direct effect of withholding from the court the best evidence relating to the execution of the document, namely the evidence of the attesting witness. It seems to me that there is no valid reason for providing that although the attesting witness is available, he need no be called by the party who is relying on the document and the execution of the document may be proved through other witness. I am of the opinion that such a provision would invade, as I said earlier, a basic principle of law of evidence, namely, that the best evidence should be produced before the court.

The second ground of objection is that attestation of documents, (the execution of which can be proved through witnesses other than the attesting witness), becomes useless. Attestation of a document is required by law to prove execution of the same. If such execution is allowed to be proved by witnesses other than the attesting witness, there will be no purpose behind the requirement as to attestation of documents.

In fact, in my view, attestation of such documents becomes a meaningless formality and there is no reason why this meaningless formality should be allowed to continue. The requirement regarding attestation will be rendered altogether nugatory if proof of execution of the documents by the attesting witness is dispensed with.

To allow attestation of documents to be required by law and at the same time to lay down the attesting witness need not be called and the documents may be proved by any other witness who can prove execution of the same, would, in my view, be an unreasonable and illogical requirement of law. Such a provision would, in my view, be quite out of harmony with the requirement as to execution and attestation of certain documents.

For the reasons mentioned above, I dissent from the recommendation of the majority relating to section 68 of the Evidence Act.

For the same reasons, I dissent from the recommendations of the majority relating to sections 69, 70, 71 and 72 of the Act, which are consequential upon the amendment proposed to section 68 of the Act.

(B.C. Mitra)
19-1-1977.

We would like to place on record our warm appreciation of the valuable assistance we have received from Shri Bakshi, Member-Secretary of the Commission in the preparation of this Report.

P.B. Gajendragadkar, Chairman.

P.K. Tripathi, Member

S.S. Dhavan, Member

S.P. Sen-Varma, Member

B.C. Mitra, Member

P.M. Bakshi, Member-Secretary.

New Delhi,
Dated: 9th May, 1977.