Bhima Tima Dhotre vs The Pioneer Chemical Co. on 23 June, 1967 Equivalent citations: (1968) 70 BOMLR 683 Author: Vimadalal Bench: Vimadalal

4. In my opinion, to hold that a document is not admissible for proof of its contents unless the writer is called, is to denude documentary evidence of all its value and is clearly contrary to certain express statutory provisions to be found in the Evidence Act to which I will presently refer. Documentary evidence becomes meaningless if the writer has to be called in every case to give oral evidence of its contents. If that were the position, it would mean that, in the ultimate analysis, all evidence must be oral and that oral evidence would virtually be the only kind of evidence recognised by law. That, however, is not the position under the Evidence Act. The definition of the term “evidence” in Section 3 of the Evidence Act lays down that evidence means and includes statements made by witnesses, which are called oral evidence, and documents produced before the Court, which are called documentary evidence. Section 59 of the said Act enacts that all facts, except the “contents” of documents, may be proved by oral evidence. This provision would clearly indicate that to prove the contents of a document by means of oral evidence would be a violation of that section, and Section 91 expressly prohibits that being done in the case of contracts, grants or other dispositions of property which have been effected in writing. That, however, is not all. Section 61 of the said Act lays down in unambiguous terms: ‘ ‘The contents of documents may be proved either by primary or by secondary evidence”, and Section 62 makes it clear that primary evidence means the document itself produced for the inspection of the Court. Needless to say, in view of the provisions of Section 67 of the Evidence Act, a document must, however, be proved in the manner provided by Sections 45, 47 or 73 of the said Act, or by the internal proof afforded by its own contents as laid down in Mobarik Ali’s case, What is important to note is the use of the word “contents”, both in Sections 59 and 61 of the Evidence Act, which leaves no room for doubt that when a document is proved in the manner laid down by the Evidence Act, the contents of that document are also proved. Of course, as Coyajee J. has observed, if the writer is not called and the matter merely rests on proof of the document, it will be for the Court to consider, on the facts of each ease, what probative value should be attached to the statements contained in the document. The view taken with regard to admissibility of documentary evidence in Madkolal Sindhu’s case as well as in the case of In the matter of Mr. D. and Mr. S., is based largely on the assumption that oral evidence is always superior to documentary evidence because it is on oath and can be subjected to cross-examination. What is, however, overlooked is that a contemporaneous record is often much safer and has more probative value than oral evidence led at the trial, even though that oral evidence may have been given on the most solemn oath and subjected to the most rigorous cross-examination. It is for that reason that the Evidence Act advisedly lays down that the contents of a document can be proved by proving the document in the usual manner, a proposition that emerges unequivocally from a combined reading of Sections 59, 61 and 62 of that Act. To require that the writer of the document should be called is, in my opinion, to import in regard to documentary evidence the rule laid down in Section 60 of the Evidence Act which, in terms, applies only to oral evidence, and to ignore the several statutory provisions set out above.