Whether it is necessary to issue notice to produce document if document to be proved is notice?

Besides that by the said affidavit, the complainant had given a notice to the accused persons to produce the original notices, in view of Clause (1) to proviso to Se.66 such notice was in fact not essential. Section 66 provides for the rules to issue notice to produce the original documents as per provisions of Section 65 Clause (a). However, the proviso to Section 66 provides that such notice shall not be required in order to render secondary evidence admissible when the document to be produced is itself a notice. The learned Counsel for the Petitioner contended that his provision will not be applicable to the facts of the present case. In the Law of Evidence by Rattanlal & Dhirajlal (22nd Enlarged Edn. revised by Mr. Justice Y.V. Chandrachud, Former Chief Justice of India), the following observation is made:

Notice shall not be required to be given (under this section) when the document to be proved is itself a notice. When a party sends a notice to the opposite party and it is received by him, a copy of the notice is admissible, and it is not obligatory to issue notice calling upon the opposite party to produce the original notice.

PHIPSON on Evidence (15th Edn. (2000), para 41-31, page 1120) observes: "Notice to produce the original is not necessary:

(a)....

(b) When the document to be proved is itself a notice which has been served on the adversary; though not on a third, e.g. a notice to produce or to quit, or of action, or of the dishonour of a bill, when the action is brought upon the bill, or of intention to remove a building, pursuant to a by-law under the Public Health act, 1875 (now the Highways Act, 1980).

In the same commentary, reference is made to Lockchand v. Union of India, MANU/RH/0079/1959 : AIR 1959 Raj.231where in a suit against Union of India, a copy of notice under Section 80 of Code of Civil Procedure was sought to be produced by the Plaintiff, but it was objected on behalf of the Defendant on the ground that copy was not admissible. It was held that Section 65 read with Section 66 of the Evidence Act permits the Plaintiff to produce the copy of the notice without summoning the original. It was also held that it was for the Defendant to show by production of the original that the document did not amount to a notice as per Section 80 of Code of Civil Procedure.

IN THE HIGH COURT OF BOMBAY

Criminal Writ Petition No. 40 of 2011

Decided On: 16.03.2011

Ashish C. Shah Vs. Sheth Developers Pvt. Ltd., 

Hon'ble Judges/Coram:

J.H. Bhatia, J.

Citation: 2011(4) MHLJ 288

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