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1924 Supreme(SC) 69
Privy Council
Sir Lawrence Jenkins, Sir John Edge, Carson, Justice Sumner, JJ.
Lala Tulsi Ram -Appellant
Versus
Ram Saran Das -Resopndent
Privy Council Appeal No. 155 of 1923
Decided On : 02-12-1924
E. Dalgado, T.L. Wilson and Co., A.De Mello, W.M. Finlay, B. Dube, George Lowndes
When a document is in court custody, the party need not prove the exact cause or perpetrator of its loss to admit secondary evidence; proving its original filing and denying personal default is sufficient. Interpolations not altering the core intent are not material alterations.
Headnote:(A) Evidence Act, 1882 - Sections 65(c) and 91 - Negotiable Instruments Act - Section 87 - Promissory note - Loss of original document - Secondary evidence - Onus of proof - Where a document is placed in the custody of the law, the party is not required to prove exactly how the document was subsequently lost or to identify the perpetrator of the loss to entitle them to secondary evidence; a denial of participation in the act of removal, if believed, is sufficient to show the loss did not arise from the party's own default.
(B) Negotiable Instruments Act - Section 87 - Material alteration - The interpolation of words such as "with interest" does not amount to a material alteration avoiding the note if it was intended that interest should be paid and the rate was already sufficiently expressed.
Facts of the case:
A suit was filed based on a promissory note, with the original document stated to be attached to the plaint. It was subsequently discovered that the original had been abstracted and a false document substituted while in court custody. The trial court allowed a photograph of the original note to be admitted as secondary evidence and decreed the suit for the principal amount with reduced interest. The appellate court reversed this decision, holding that the plaintiff failed to prove the original was lost without default under Section 65(c) of the Evidence Act.
Findings of Court:
The court found that the positive evidence regarding the filing of the original note was credible and not contradicted by direct evidence. Since the document was in the custody of the court, the plaintiff was not burdened with proving the specific circumstances of its disappearance or the identity of the guilty party. The photograph was therefore admissible as secondary evidence.
Issues: Whether the plaintiff discharged the onus of proving that the original promissory note was lost without his default, thereby entitling him to lead secondary evidence of its contents.
Ratio Decidendi: Once a document is placed in the custody of the court, the party does not need to prove how it was made away with or satisfy the court that the opposing party was more likely to be guilty. Proving the original exhibition of the note and a credible denial of participation in its removal is sufficient to satisfy the requirement of loss without default. Additionally, an interpolation that does not change the fundamental intent or the expressed rate of interest is not a material alteration under the Negotiable Instruments Act.
Result: Appeal allowed.
Legal Category Hierarchy
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practice and procedure
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evidence
- secondary evidence
- onus of proof
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evidence
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commercial law
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negotiable instruments
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promissory notes
- material alteration
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promissory notes
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negotiable instruments
Lord Sumner:-
The appellants sued upon a promissory note made by the respondent and he lost in the High Court the decree, which he had recovered at the trial. Curiously enough the main question is, whether he discharged the onus of proving that the note had been lost without his default) so as to entitle him to give secondary evi dence of its contents.
According to the practice, either the original note or a copy of it had to be attached to the plaint. It was stated, both in the plaint and in the list of documents accompanying it, that the note exhibited was the original. This was on 14th Feb ruary, 1917. Next day the plaintiff's plea der received notice from the Court officials that he must amend his list and pay a fur ther process fee. He went to the office to make these defects good and, apparently, had access at least to the list of documents, if not to the other papers.
Thereafter the officials, probably on the same day, served the defendant with the plaint and so gave him the opportunity of learning that the original document had been filed in Court, but what action he took thereon, if any, is matter of conjecture.
On the 1st March, 1917, an application by the plaintiff for attachment before judgment came before the District Judge. The defendant's pleader looked at the file and was heard by the plaintiff's pleader to say that the note was forged. On this the plaintiff's pleader also looked at the file, and at once applied to the Judge, say ing that the original note had been abs tracted and a false one was substituted and asking him to hold an inquiry into the circumstances of this change. The District Judge then examined sundry officials but, the result was negative, for they did not incriminate either themselves or one another.
When the trial came on the plaintiff's pleader asked to be allowed to put in, as secondary evidence of the note, a photo graph of it taken some little time before, and, as his statement was accepted that he filed the original with the plaint and had nothing to do with the substitution, the photograph was let in. Witnesses were then called on both sides. The defendant did not deny that he had made a note for the alleged amount, Rs. 8,000, but he said that it contained no provision for interest. The photograph concluded with the words
" with interest at Rs. 5 p. c. p. m." The words "with interest" appear from the photograph to have been written by the same hand as the rest of body of the note, but at a later time and in part of the space originally left for the stamp and the sig nature, and the letters " at Rs. 5 p. c. p. m." seem to have been written at the same time as the body of the note and by the same hand currente calamo. In the event the Trial Judge found for the genuine ness of the note as shown in the photo graph and gave a decree for the amount of the principal, but reduced the interest from the exorbitant rate of 60 per cent. to a mere 6 per cent. per annum.
The High Court held on appeal that the plaintiff had failed to prove the actual at tachment of the original note to the plaint when it was filed. If so, the evidence given by his pleader was false, and false almost certainly to his knowledge, and the plaintiff neither showed that, owing to its loss or otherwise, he was unable to pro duce it for a reason not arising from de fault or neglect on his part, nor indeed that it was lost at all, (Evidence Act, 1882, Section 65 (c).) Accordingly, as the claim on the note could not succeed without either the note itself or secondary evidence of its contents (Section 91), and no alter native cause of action , was pleaded or re lied on, the suit necessarily failed.
Their Lordships are unable to accept this conclusion. The plaintiff's pleader gave positive evidence that he attached the note itself to the plaint, and that it was subsequently abstracted, and there was no direct evidence to the contrary.
Mistake on his part was unlikely, for he was a young man, just beginning practice and anything but bus
