Does a Written Admission Under Section 60(b) BSA [Section 65(b) of the Evidence Act] Dispense with the Requirement of Producing a Formally Admissible Copy?

Saji Koduvath, Advocate, Kottayam.

Abstract

Section 60(b) of the Bharatiya Sakshya Adhiniyam, 2023 [Section 65(b) of the Indian Evidence Act, 1872] applies where the opposite party has admitted in writing the existence, condition, or contents of the original document. Once these facts stand admitted, it may legitimately be contended that there is no necessity to prove them by any of the recognised modes of proof contemplated under Section 58 of the BSA [Section 63 of the Evidence Act].

However, Section 60 of the BSA [Section 65 of the Evidence Act] merely specifies the circumstances in which secondary evidence may be given. Hence, it may be argued that, notwithstanding the written admission, the party relying on the document must still produce and prove an admissible copy answering the description of secondary evidence under Section 58 of the BSA [Section 63 of the Evidence Act].

In the celebrated decision in R.V.E. Venkatachala Gounder v. Arulmigu Visweswaraswami & V.P. Temple, (2003) 8 SCC 752, the Supreme Court authoritatively held that an objection relating to the mode of proof is waived if it is not taken at the time the document is tendered in evidence. Under the scheme of the Bharatiya Sakshya Adhiniyam [the Indian Evidence Act], nevertheless, there is a distinction in the matter of admitting a copy of a document (secondary evidence) — because of the statutory requirement that the copy to be adduced must be one that is admissible as secondary evidence (under Section 58, BSA). If this view is accepted, the principle of waiver enunciated in R.V.E. Venkatachala Gounder would have no application in such cases (where the copy of a document produced does not satisfy the statutory requirements of secondary evidence).

S. 60 BSA Says: “Cases in Which Secondary Evidence … May be Given“

Section 60 of the BSA [Section 65 of the Evidence Act] enumerates the “Cases in which secondary evidence relating to a document may be given”. Relevant part of Section 60 reads as under:

  • “60. Cases in which secondary evidence relating to documents may be given. Secondary evidence may be given of the existence, condition, or contents of a
    document in the following cases, namely: — (a) ……. “

S. 60(b): If Opposite Party Admits Document in Writing

Section 60(b) BSA lays down a situation in which ‘secondary evidence may be given‘. It is attracted where the opposite party has admitted in writing the existence, condition or contents of the original document (for example, admitted in a previous letter – “the enclosed copy is correct”). Section 60(b) reads as under:

  • “(b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest.”

S. 53 BSA Says: What Constitutes Secondary Evidence

Section 60(b) does not, by itself, prescribe what constitutes secondary evidence. It is dealt with under Section 58 BSA [S. 63 of the Evidence Act].

S. 53 BSA Says: Admitted Facts Need Not Be Proved

Where the existence, condition or contents of a document stand admitted within the meaning of Section 60(b), read with Section 53 of the BSA (admitted facts need not be proved), formal proof of those facts (by primary or secondary evidence) may become unnecessary. In such cases, the evidentiary value lies in the written admission itself.

Significance of S. 60(b) and Combined Effect of S. 60(b) and S. 53

Section 60(b) embodies more than the general principle that ‘admitted facts need not be proved’. It specifically deals with the existence, condition or contents of an original document admitted in writing by the opposite party. The provision must therefore be given its full effect and cannot be treated as merely repeating the rule contained in Section 53 (admitted facts need not be proved).

Therefore, the legislative intention is clear – the general principle that ‘admitted facts need not be proved’ cannot be simply applied to ‘secondary evidence’.

Defective, Unhappy Legislative Drafting

Ambiguity and potential divergent views stem from inartful legislative drafting. It clear from the following:

  • First: Section 53 (Section 58 Evidence Act) embodies the general rule that admitted facts need not be proved. Section 60(b) operates in a narrower field, for the existence, condition or contents of the original has to be ‘admitted in writing‘. Because of the faulty drafting of Section 60(b), even if a legible copy of a document is admitted in writing, that copy may not be received in evidence; the secondary evidence admissible under Section 58 (Section 63 Evidence Act) alone can be received. Because Section 60 [Section 65 Evidence Act] enumerates the “Cases in which secondary evidence relating to a document may be given”.
  • Second: Therefore, if a copy that does not qualify as secondary evidence under Section 58 (for example, an un-compared copy of a copy) is expressly admitted in writing by a party to the suit as “a correct copy”, that copy does not become admissible. That is, the statutory requirement under Section 58, that only the classes of copies recognised are admissible as secondary evidence, remains unaffected.
  • Third: Ordinarily, a third or fourth copy of a copy does not answer the statutory definition of secondary evidence under Section 58. If such a copy alone has been admitted in writing (for example, “the enclosed copy is correct”), the same argument is possible – it is mandatory to produce and prove an (admissible) copy satisfying Section 58.
  • Fourth: Since Section 53 provides that admitted facts need not be proved, it may be argued that proof of the existence or contents of the original document is dispensed with once the written admission falls within Section 60(b). But, in such a case, the full effect of the beginning words in Section 60 (S. 65 Evidence Act) is not given: “Secondary evidence may be given…”

Major General M.S. Ahluwalia v. Tehelka.Com

In Major General M.S. Ahluwalia v. Tehelka.Com, 2023:DHC:5073, the Delhi High Court observed:

  • “…its contents have been admitted under Section 65(b) read with Section 58 of the Indian Evidence Act, 1872 which essentially provide that when there is an admission of the contents of a document in the pleadings, no question of proving the document by primary or secondary evidence arises. In fact, in such cases of admission, there is no requirement on a party relying on a document to even produce it.”

‘Mode of Proof is liable to be waived’ v. Section 58

The further reasoning adopted in the Delhi High Court decision is that the mode of proof is liable to be waived. The High Court relied upon R.V.E. Venkatachala Gounder v. Arulmigu Visweswara Swami & V.P. Temple, (2003) 8 SCC 752, and reiterated that objections relating merely to the mode of proof are liable to be waived if not taken when the document is tendered.

But, it goes against the legislative intention (as stated above) – the ‘admitted facts need not be proved’ cannot be simply applied to ‘secondary evidence’. That is, the edicts of what constitutes secondary evidence (in Section 58) are to be strictly honoured. Because Section 60 (S. 65 Evidence Act) is only as regards “Cases in which secondary evidence relating to document may be given”. Therefore, it should not be understood as laying down that the mandates of Section 58 (secondary evidence) become irrelevant whenever Section 60(b) is invoked.

An Authoritative Pronouncement Yet to Come

The issue, in a nutshell, is whether Section 58 (secondary evidence) is overridden by Section 60(b). Or, whether, by reason of the admission contemplated by Section 60(b), Section 53 (admitted facts need not be proved) dispenses with the necessity of proving the admitted facts through the ordinary rules governing documentary evidence.

The language of the enactment admits more than one construction. It is yet to be authoritatively resolved whether a written admission falling within Section 60(b), read with Section 53 (admitted facts need not be proved), dispenses altogether with the necessity of satisfying the requirements of Section 58 (secondary evidence).

Conclusion

In appropriate cases, the court may receive and act upon the admitted copy, on the premises that its evidentiary value flows not from the copy itself but from the written admission. In other words, the source of proof in such a case is not the copy but the written admission; the copy merely serves to identify the document whose existence, condition, or contents have been admitted.

Tailpiece: It is always open to the court to act upon the contents of an original document, where they have been expressly admitted in writing by a party (whether by quoting the document or otherwise). In such a case, the court is free to act upon such written admission, without being constrained by the technical requirements governing secondary evidence under Section 60 BSA (S. 65 of the Evidence Act).

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