Admissibility of evidence under Section 63(3) of the Indian Evidence Act

Wadsworth, J.

1. This appeal arises out of a suit in which the only real question was whether the second defendant was or was not the adopted son of the plaintiff. Plaintiff denied the adoption. In the course of the arguments, two documents were exhibited on behalf of the defence, namely, Exs. XI and XI (a).

2. Ex. XI is a copy of a deposition by the plaintiff in a criminal case, forming part of the printed record of the revision proceedings in the High Court. Ex. XI (a) is a copy taken from that printed copy. In this deposition the plaintiff makes an admission which if the copy is correct, practically puts an end to his case. He admits that the second defendant was his adopted son. When the plaintiff was in the box, he was asked whether he had made such a statement and he said:

I did not admit there that second defendant was my son. I said that he was by courtesy my son as he married my wifes brothers daughter.

Evidently when the plaintiff was cross-examined the printed copy of the deposition was not available and was not actually used in cross-examination. The only contention in second appeal which has any basis is the contention that Ex. XI, the printed copy of the plaintiffs deposition, is not secondary evidence of that deposition in that it is not a copy made from or compared with the original (vide Section 63(3) of the Indian Evidence Act). Both the lower Courts on the authority of the decision of Ramesam, J., in Ganapathi Aiyar v. Sakharayappa Mudaliar AIR1929Mad187 have held that printed copies of High Court record are in practice compared with the original deposition at the time when the proofs are corrected and that therefore they are good secondary evidence under Section 63(3) of the Evidence Act. Both the lower Courts overlooked the fact that in the case just referred to, Ramesam, J., was dealing with the procedure followed in the printing of the High Courts records prior to 1922. I have ascertained from the Translation and Printing department of the High Court that the procedure which formed the basis of this judgment came to an end shortly after the work of printing the High Court records was transferred from the Press in the High Court to the main Government Press, and this transfer took place on 4th of January, 1923. It would appear that for a few months thereafter the checking of proofs with the originals continued. Thereafter it ceased and the present practice which has been going on for many years is to send to the Government Press typed copies of the record, from which the printed record is made and the correcting of proofs is done in the Government Press by comparison with the typed copy and not with the original depositions. Therefore it follows that the High Court record under the present procedure is not a copy made from or compared with the original but a copy of a copy and unless there is evidence of some comparison with the original which is not the usual practice, the inference would be that the printed record is in the absence of consent not good evidence of the original. Ex. XI was a deposition in a case which came up to the High Court on 22nd April, 1924, that is to say, a year and a quarter after the transfer of the printing to the Government Press. The case was actually disposed of in April 1925. It would seem probable therefore that the present procedure was followed and that the printing was done from the typed copy and it is not likely that there would have been a comparison with the original deposition. Both the Courts were wrong in, assumingon the strength of Ramesam, J.s observations that the practice referred to by him still continued at the time that Ex. XI was printed. It seems to me to follow that unless the defence are in a position to prove that in fact this record was checked with the original, Exs. XI and XI (a) were wrongly-admitted in evidence.

3. I have been asked to go into all the evidence in the case and hold under Section 167 of the Evidence Act that excluding Exs. XI an