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documentary evidence

Supreme Court of India

Atma S. Berar vs Mukhtiar Singh on 12 December, 2002

The power of the Court to take note of subsequent events is well-settled and undoubted. However, it is accompanied by three riders : firstly, the subsequent event should be brought promptly to the notice of the Court; secondly, it should be brought to the notice of the Court consistently with rules of procedure enabling Court to take note of such events and affording the opposite party an opportunity of meeting or explaining such events; and thirdly, the subsequent event must have a material bearing on right to relief of any party.

Affidavit - whether evidence within the meaning of Section 3 of the Evidence Act, 1872:

It is a settled legal proposition that an affidavit is not evidence within the meaning of Section 3 of the Indian Evidence Act, 1872 (hereinafter referred to as the ‘Evidence Act’).

Affidavits are therefore, not included within the purview of the definition of "evidence" as has been given in Section 3 of the Evidence Act, and the same can be used as "evidence" only if, for sufficient reasons, the Court passes an order under Order XIX of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’). Thus, the filing of an affidavit of one’s own statement, in one’s own favour, cannot be regarded as sufficient evidence for any Court or Tribunal, on the basis of which it can come to a conclusion as regards a particular fact-situation. (Vide: Sudha Devi v. M.P. Narayanan & Ors., AIR 1988 SC 1381; and Range Forest Officer v. S.T. Hadimani, AIR 2002 SC 1147).

While examining a case under the provisions of the Industrial Disputes Act, 1947, this Court, in M/s Bareilly Electricity Supply Co. Ltd. v. The Workmen & Ors., AIR 1972 SC 330, considered the application of Order XIX, Rules 1 and 2 CPC, and observed as under:-

"But the application of principles of natural justice does not imply that what is not evidence, can be acted upon. On the other hand, what it means is that no material can be relied upon to establish a contested fact which are not spoken to by the persons who are competent to speak about them and are subject to cross-examination by the party against whom they are sought to be used. When a document is produced in a Court or a Tribunal, the question that naturally arises is: is it a genuine document, what are its contents and are the statements contained therein true...... If a letter or other document is produced to establish some fact which is relevant to the inquiry, the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. This is both in accordance with the principles of natural justice as also according to the procedure under O. 19 of the Code and the Evidence Act, both of which incorporate the general principles."

In Needle Industries (India) Ltd. & Ors. v. N.I.N.I.H. Ltd. & Ors., AIR 1981 SC 1298, this Court considered a case under the Indian Companies Act, and observed that, “it is generally unsatisfactory to record a finding involving grave consequences with respect to a person, on the basis of affidavits and documents alone, without asking that person to submit to cross-examination”. However, the conduct of the parties may be an important factor, with regard to determining whether they showed their willingness to get the said issue determined on the basis of affidavits, correspondence and other documents, on the basis of which proper and necessary inferences can safely and legitimately be drawn.

In Ramesh Kumar v. Kesho Ram, AIR 1992 SC 700, this Court considered the scope of application of the provisions of O. XIX, Rr. 1 and 2 CPC in a Rent Control matter, observing as under:-

"The Court may also treat any affidavit filed in support of the pleadings itself as one under the said provisions and call upon the opposite side to traverse it. The Court, if it finds that having regard to the nature of the allegations, it is necessary to record oral evidence tested by oral cross- examination, may have recourse to that procedure."

In Standard Chartered Bank v. Andhra Bank Financial Services Ltd. & Ors., (2006) 6 SCC 94, this Court while dealing with a case under the provisions of Companies Act, 1956, while considering complex issues regarding the Markets, Exchanges and Securities, and the procedure to be followed by special Tribunals, held as under :

“While it may be true that the Special Court has been given a certain amount of latitude in the matter of procedure, it surely cannot fly away from established legal principles while deciding the cases before it. As to what inference arises from a document, is always a matter of evidence unless the document is self-explanatory…….In the absence of any such explanation, it was not open to the Special Court to come up with its own explanations and decide the fate of the suit on the basis of its inference based on such assumed explanations.”

Therefore, affidavits in the light of the aforesaid discussion are not considered to be evidence, within the meaning of Section 3 of the Evidence Act. However, in a case where the deponent is available for cross-examination, and opportunity is given to the other side to cross-examine h