ORDER
A.S. Anand, C.J.
1. A confusion (though not uncommon) in the mind of the learned trial Court between the mode of proof and adequacy oil proof of a document resulted in the disallowing of a question put by the petitioner to his witness regarding the authorship of the entries in the School admission register and the consequential Filing of the present revision petition.
2. The respondent-plaintiff filed a suit for declaration to the effect that his date of birth is 1-6-1936 corresponding to 20th Jeth, 1993 Bikrimi, He also sought the consequential relief by way of a mandatory injunction to the petitioner-defendant to make the necessary correction in its records. The petitioner-defendant resisted the suit and one of the issues framed in the suit is as to what is the correct date of birth of the respondent-plaintiff. After the evidence of the plaintiff was over, the defendant led its evidence During the course of the defendant’s evidence, one of its witnesses produced the original admission register from the S.R.M.P. High School and it forms a part of the Court record. The register contains an entry wherein the date of birth, as originally declared, appears to have been changed. The changed date of birth, as recorded, is 30-11-1934, corresponding to 18-8-1991 Bikrami. The entry, according to the defendant, is in the hand of the then Principal of the S.R.M.P. High School, Shri N. D. Sun and it sought to prove it by the opinion evidence of S. Harbans Singh, an officer of the defendant Board, on the basis that the witness is acquainted with the handwriting of Shri N. D. Suri. The Court disallowed the question to be put on the ground that it is only the scribe of the entry, where he is alive and available, who can prove such an entry. The trial Court opined that the evidence of S. Harbans Singh is in the nature of secondary evidence which could not be allowed unless it was established that the primary evidence was not available.
3. The argument of Mr. Thakur is twofold :– one that under Section 67, Evidence Act, a document can be proved by proving the handwriting or signature of the person who wrote it and two that opinion of person who is acquainted with the handwriting of the person whose handwriting is in question, is made a relevant fact. He, therefore, argued that the question put by him to the witness was relevant and hence admissible and its rejection by the trial Court on the assumption that it was not primary evidence was wrong.
4. Mr. Inderjeet Gupta, appearing for the plaintiff-respondent, however, supported the impugned order by urging that the non-production of the scribe, where he is easily available, by the party would disentitle the party from proving the document through the opinion evidence and that such opinion evidence cannot have the same value as proof by the scribe himself. In support of his submission he relied upon AIR 1954 Bom 305; AIR 1955 Saurushtra 68 and AIR 1968 Bom 112.
5. The entire controversy, therefore, in the present case, as notified in the beginning, is about the relevancy of opinion evidence of third persons about the identity of handwriting of a person who wrote the document. This has to be resolved by reference to the relevant provisions of the Evidence Act because if the fact sought to be proved was relevant, the question put by the defendant to his witness could be allowed and not otherwise. The trial Court, however, did not approach the problem in the manner it ought to have and, for what shall follow, it fell in error. Chapter II of the Evidence Act deals with relevancy of facts and the proof of such relevant facts is admissible. Sections 45 to 51 of this Chapter specifically deal with “opinion of third persons when relevant.” A bare look at Section 47 would reveal that the question which was put to the witness has been made relevant by the said section. This section which deals with the admissibility of a variety of opinion evidence reads as follows : —
“When the Court has to form an opinion as to the person by whom document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person is a relevant fact.
Explanation.– A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person or when, in the ordinary course of business documents purport ing to be written by that person have been habitually submitted to him.”
This section deals with the question of identification of handwriting and the opinion of a person who is acquainted with the handwriting of the person alleged to have written the document is relevant. Any question which makes the opinion relevant, therefore, cannot be disallowed because Section 51 makes that fact also relevant. Section 47 differs from Section 45, Evidence Act in this, that under Section 45, the witness must be specially skilled in the art of distinguishing writing which, in other words, implies, he must be an expert witness, but under Section 47 any person, other than an expert witness, who is acquainted with the handwriting of another person may give his opinion as to the identity of the handwriting. Section 47 lays down that the person may be acquainted with the handwriting of others in 3 ways, viz. (1) when he has seen that person write; (2) when he has received communication purported to be written by that person in answer to some communication written by himself or under his authority addressed to that person although neither of them has seen each other write and, (3) when in the ordinary course of business, the documents purported to be written by that person have been habitually submitted to him. This kind of non-expert evidence is relevant evidence, though the weight to be attached to such evidence would vary with the degree of the witness’s knowledge of the handwriting of the other person. Field, in his treatise on the “Law Evidence”, 10th Edition, while dealing with different methods of proving handwriting has opined at page 2963 (Vol. III) that :
“The ordinary methods of proving handwriting are : (1) by calling as a witness a person who wrote the document or saw it written, or who is qualified to express an opinion as to the handwriting by virtue of Section 47, Evidence Act; (2) by a comparison of handwriting as provided in Section 73, Evidence Act, and (3) by the admission of the person against whom the document is tendered. A document does not prove itself nor is an unproved signature proof of its having been written by the person whose signature it purports to bear. In applying the provisions of Section 73, Evidence Act, it is important not to lose sight of its exact terms.”
To conclude this matter, I need only refer to what the apex Court of the country has said on this subject.
In AIR 1959 SC 443 at p. 451, their Lordships observed : —
“Under Section 67 if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting and for proving such a handwriting under Section 45 and Section 47 of the Act, the opinion of an expert and of persons acquainted with the handwriting of the person are made relevant.”
Thus viewed, it is obvious that the objection of the respondent to the question which squarely fell within the ambit of Section 47, Evidence Act, was thoroughly misconceived and ought to have been rejected by the Court straightway.
6. The course open to the respondent was to challenge the testimony of the witness to take it away from the scope of the section and this could be done during the cross-examination by ascertaining inter alia the number of opportunities the witness had in seeing Shri Suri write or the times he had received and read the correspondence written by him or the length of time which had passed, after he saw him last write and the like. An effort could be made to question the value of the evidence of the witness because a comparison of the handwriting is, generally speaking, as a mode of proof, hazardous and inconclusive. Instead of challenging the credibility of the witness, the respondent-plaintiff resorted to a short cut in objecting to the very right of a party to adduce such an evidence, which Section 47, Evidence Act, itself permits to be led. The learned trial Court does not appear to have appreciated the requirements of Section 47, Evidence Act, while disallowing the question to be put to the witness.
7. Undoubtedly, it is the cardinal rule of the law of evidence, that the best evidence should be brought before the Court. The provisions of Sections 60 (requiring oral evidence to be direct), 64 (requiring the document to be proved by primary evidence) and 91 (relating to evidence of terms of contract, etc.) are based on this rule. The Court is not empowered by any law to compel either side to the litigation to examine any particular witness or witnesses on their side. This has to be left to those in charge of the case on either side. However, in weighing the evidence the Court can take note of the fact that the best available evidence has not been given and draw an adverse inference, if available. In case the petitioner-defendant failed to lead best evidence, the Court could at the stage of assessment of evidence, draw any permissible inference but it certainly could not shut out a relevant piece of evidence from being brought on record. It would be for the Court at that stage to appreciate whether the genuineness, correction or truthfulness of the entry has been proved to its satisfaction or not.
8. Thus, in view of the above discussion, it can be safely concluded that the learned trial Court fell in error in disallowing the question to be put to the witness as by so doing it really shut out relevant evidence from being brought on record and, as already noticed, as to what is the weight to be attached to such evidence and whether the proof furnished by the defendant petitioner is sufficient or not, would have to be determined by the trial Court at the stage of appreciation of evidence.
9. The authorities relied upon by Mr. Inderjeet Gupta, learned counsel for the plaintiff-respondent do not also lay down any contrary proposition :
10. In AIR 1954 Bom 305, the learned single judge of the Bombay High Court observed that : —
“As I have already observed it was futile for Mr. Somjee to merely prove the signatures or the handwriting of the persons who signed or write the various documents without calling the said persons who were the only persons who could depose to the correctness of the contents of those various documents. Whether Deshpande, Paranjape or Janmadas signed or wrote the various documents, was not the only issue before me. If that had been the only issue, the proof of the signatures or the handwriting of Deshpande, Paranjape or Jamnadas would have been enough. What was in issue, however, before me was apart, from Deshpande, Paranjape or Jamnadas having signed or written those documents, whether the contents of those various documents were correct.”
11. This judgment, therefore, does not support Mr. Gupta. It was not held in this case that the Court could shut the opinion evidence relating to the authorship of the document from being brought on record. In this case what was involved was the value to be attached to the evidence led and whether the evidence given under Section 47, Evidence Act, in that case was sufficient to hold that the contents of the documents were found to be correct. That stage, in the present case, has not yet arisen.
12. Again, in AIR 1955 Saurashtra 68, the Division Bench observed as follows : —
“Now Section 67, Evidence Act, enacts that if a document is alleged to be signed or to have been written wholly or in part by any person the signature or handwriting or so much of the document as it alleged to be in that person’s handwriting must be proved to be in his handwriting. Handwriting may be proved or disproved in the following ways-
(a) by calling the writer, or (b) by any person, e.g., an attesting witness who actually saw him write the document; or (c) by the evidence of the opinion of experts under Section 45 of the Act, or (d) by the opinion evidence of non-experts, namely, under Section 47 by the evidence of a person who has acquired a knowledge of the character of the handwriting in one of the ways specified in this section.”
13. The aforesaid observations do not support Mr. Gupta at all and, as a matter of fact, it supports the case of the petitioner-defendant because it is laid down that opinion evidence within the meaning of Section 47, Evidence Act, is one of the modes of proving the signatures or handwriting of a person.
14. In AIR 1968 Bom 112, the question debated before the Division Bench was entirely different and it was on facts of that case, that the Bench observed that even if the entire document is held to have been formally proved that does not amount to a “proof of the truth of contents of the document” and that the person competent to give evidence on the truthfulness of the contents, of document is the writer thereof. This judgment also, therefore, cannot advance the case of the respondent plaintiff and is clearly distinguishable. The aforesaid three judgments, therefore, instead of supporting the case of the respondent-plaintiff go against him and, in any event, are distinguishable on facts.
15. The only other point, which now requires to be dealt with, is the validity of the observation of the trial Court that the opinion evidence is secondary and not primary evidence. This view, in my opinion, is totally misconceived.
16. Section 61, Evidence Act, provides that the contents of the document may be proved either by primary or by secondary evidence under Section 62, the primary evidence means the document itself produced for the inspection of the Court. This general rule is based on the best evidence principle. Section 63, Evidence Act, defines the secondary evidence in relation of documents. Secondary evidence is such evidence which may be given in the absence of the better evidence, which the law requires to be given first, after a proper explanation of its absence is given. The definition given in Section 63 is exhaustive as the section declares that secondary evidence “means and includes”. The trial court in the instant case was of the opinion that by getting the entry proved by a witness under Section 47, Evidence Act, the defendant was leading secondary evidence in respect of the document. That view, on the plain phraseology of Sections 62 and 63, Evidence Act, is clearly erroneous under Section 64, the documents are required to be proved by primary evidence subject, however, to the exceptions provided in the Act itself. The primary evidence in the case of the document is the document itself and that undoubtedly had been produced. The question put to the witness related to the mode of proof of the document and the question of primary or secondary evidence was not even distantly related. Section 67, Evidence Act, is the relevant provision dealing with the mode of proof of signature and handwriting of the person alleged to have signed or written the document. The said section reads : —
“If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.”
17. The aforesaid section, on its plain phraseology, does not require the scribe of the document to be examined of necessity. Under this section, if a document is alleged to be signed or written by a person, his signature or writing may be proved cither under Section 45 o rS. 47, Evidence Act. Of course, the simplest mode of proof is to call the writer himself but the Evidence Act itself provides that the said mode is not the only mode and the document may be proved through some person who actually saw the document or the signature written or through the opinion evidence. The Evidence Act recognises no distinction between these various modes of proof. It is for the party seeking to prove the document to adopt either of the modes of proof and, as already noticed, in a given case, the Court shall have to see what weight is to be attached to the said evidence. That question, however, pertains to the realm of adequacy of evidence or the weight to be attached to such evidence. It does not make the proof of the document through opinion evidence as secondary evidence.
18. Thus, in view of the aforesaid discussion, this revision petition succeeds and is allowed but with no orders as to costs. The order of the trial Court disallowing the question, which amounts to shutting out of relevant evidence, is set aside and the trial Court is directed to proceed with the trial of the suit in the light of the observations made ‘hereinabove expeditiously.
19. The parties through the learned counsel, are directed to appear before the trial Court on 20th Feb. 1986. Record shall be returned to the trial Court.