Report No. 69
9.68. Reasons for departure from English law.-
Thus, the corresponding exception in England, to the rule prohibiting the substitution of oral testimony for the document itself, is wider. The admissions being primary evidence against a party (and also against those claiming under him), are receivable to prove the contents of documents without notice to produce, or without accounting for the absence of the originals.1
1. See discussion in Muttukaruppa v. Rama, (1866) 3 Mad HCR 158.
9.69. However, recognising that such a wide attitude may lead to dangerous consequences, the section, departing from the English law, adopts only a modified rule, and oral admissions are not relevant until the general conditions for the admission of secondary evidence are satisfied.
9.70. The consequences which are liable to follow on the reception of such evidence without there being a case for secondary evidence, were pointed out in an Irish case,1 where the English rule was criticised. Section 22 is based on the principle underlying this criticism. The section modifies the English law, inasmuch as the admissions in question are admissible only if the conditions for secondary evidence exist. In the Irish case,2 Pennefather, C.J. observed while commenting on the case of Slatterie v. Pooley3
"Is there no danger of untruth or misrepresentation when used against the party making the admission? That is the ground put by Parke B. in Slatterie v. Pooley, and in which I cannot agree, when I know by experience how easy it is to fabricate admissions and how impossible to come prepared to detect the falsehood. Why are writings prepared at all but to prevent mistakes and misrepresentation and why, having taken that precaution, with such writing at hand and capable of being produced, is the same to be laid aside, and inferior and less satisfactory evidence resorted to?"
1. See the observations of Pennefather, C.J., in Lawless v. Quesale, 8 ILR 382 (385), (infra).
2. Lawless v. Quesale, 8 ILR 382 (385).
3. Slatterie v Pooley, supra.
9.71. Dangers of admitting oral admissions without establishing case for secondary evidence.-
In a case which went upto the Privy Council1, the plaintiff sued for a settlement of account, and the plaintiff, instead of producing and proving the account current between himself and the defendant, produced evidence to prove the oral admission of the debt. The Privy Council rejected the evidence and held-
"They consider that it is a very dangerous thing to rest a judgment upon verbal admissions or a sum due, without very clear evidence, especially when there are other means of proving the case, if a true one."
1. Sheo Parshad v. Jaggar Nath, (1884) 10 Indian Appeals 79 (PC).
9.72. There is a parallel provision1 in the Act under which, when the existence, conditions or contents of the original document have been proved to be admitted in writing by the person against whom it is proved or by his representatives in interest, such written admission is admissible. But, we are not concerned with that provision.
1. Section 65, clause (5).
9.73. Last part of the section.-
Where the question is of genuineness, the last part of the section permits oral admissions. Although this portion is somewhat cryptically worded, its true meaning is what Norton1 has stated, which is in these words:
"Or, unless the genuineness of a document produced is in question. The effect of the last clause of this section seems to be that if such a document is produced, the admissions of the parties to it that it is, or is not, genuine may be received."
1. Norton cited by Field on Evidence.
No changes of substance are needed in the section, but the last portion of the section could be made more clear, by spelling out its true intent as mentioned above.1 To carry out this object, we recommend that the section should be re-drafted as follows:-
"22. Oral admissions as to the contents of a document are not relevant-
(a) unless the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained; or
(b) except where a document is produced and its genuineness is in question."
1. Para. 9.73, supra.