Is the report of bailiff on a summons issued by a Court a public document under Section 74 of the Indian Evidence Act (‘Act’), 1872? .Whereas various High Courts have offered diverging views on this question, Justice Manish Pitale of the Bombay High Court recently answered this question in the negative holding that,.“… treating a bailiff report of service of summons …. to be a public document under Section 74 of the [Indian Evidence] Act, would not be in consonance with law. This is because the report of a bailiff, as in this case, on the reverse of the document of summons issued by the Court is nothing but his opinion about service of summons or otherwise on the person to whom the summons have been issued by the Court. .Although, it may be an official act, the report itself submitted by the bailiff in pursuance of the summons issued by the Court, cannot be said to be an act of the Court or record of an act of the Court, to qualify as a public document under Section 74 of the said Act.“.The Court made the observation after a petition was filed challenging a trial court finding to the contrary. The petitioner and the respondent were co-defendants in a property dispute. The respondent eventually made a counter-claim in this property dispute, which was allowed against the petitioner and other co-defendants..However, the trial court allowed this counter claim ex-parte, without hearing the petitioner. The petitioner contested the same and filed an application to set aside the ex-parte decree, claiming that he could not present his response as he was not informed of the proceedings..Notably, the trial court had dispensed with the appearance of the petitioner after the respondent produced a certified copy of a bailiff report stating that summons in the matter had been duly served upon the petitioner. In 2015, the trial court passed an order allowing the exhibition of a certified copy of this report as a certified copy of a public document..The trial court proceeded on the ground that a bailiff’s report was a public document under Section 74 of the Indian Evidence Act. Therefore, it accepted the certified copy of the bailiff report by itself as proof of valid summons on the petitioner..Once a document qualifies to be a public document under Section 74, the production of its certified copy becomes proof of the document’s contents under Section 77 of the Act. This means that a person filing a certified copy of the public document has no further burden to independently prove the contents of the document..In 2016, the trial court rejected an application filed by the petitioner for de-exhibiting the bailiff report. The petitioner had contended that the bailiff report is not a public document and therefore, the respondent had a burden to otherwise prove the service of valid summons. The trial court, however, opined that a bailiff report was a public document since it was in the prescribed proforma of the Court and since it had seal and signature of the issuing authority, as also the process server..However, after the petitioner filed a writ petition challenging this finding, the High Court has faulted the trial court’s finding, concluding that,.“Only the contents of the summons issued by the Court, consisting of name of the Court, name of the parties, seal of the Court and the returnable date stated in the summons could be said to be a public document. The report written by the bailiff on the reverse of the said document could certainly not be said to be a public document under Section 74 of the said Act.”.In doing so, it concurred with the view adopted in the Jharkhand High Court case of Junul Surin v. Silas Munda, while disagreeing with the view taken by the Madhya Pradesh High Court in Jagdish Prasad v. Daulatram and the (erstwhile) Oudh High Court in Balku v. King Emperor..The Court, therefore, allowed the petition. The trial court’s order allowing exhibition of the bailiff report as a public document and its rejection of the petitioner’s application to de-exhbit the bailiff report copy were quashed. The Bench ruled that the respondent has a burden to prove the valid service of summons in the case by examining the bailiff, who may then be cross-examined by the petitioner..“The burden [of proof] could not be said to be discharged by the respondent no.4 by merely producing certified copy of the said bailiff report written on the reverse of the summons, but it was for the respondent no.4 to have examined the bailiff to prove the existence of the fact of service of summons on the petitioner, on the strength of the said bailiff report. The petitioner could then cross-examine the said witness (bailiff).”.Read the Judgment:
Is the report of bailiff on a summons issued by a Court a public document under Section 74 of the Indian Evidence Act (‘Act’), 1872? .Whereas various High Courts have offered diverging views on this question, Justice Manish Pitale of the Bombay High Court recently answered this question in the negative holding that,.“… treating a bailiff report of service of summons …. to be a public document under Section 74 of the [Indian Evidence] Act, would not be in consonance with law. This is because the report of a bailiff, as in this case, on the reverse of the document of summons issued by the Court is nothing but his opinion about service of summons or otherwise on the person to whom the summons have been issued by the Court. .Although, it may be an official act, the report itself submitted by the bailiff in pursuance of the summons issued by the Court, cannot be said to be an act of the Court or record of an act of the Court, to qualify as a public document under Section 74 of the said Act.“.The Court made the observation after a petition was filed challenging a trial court finding to the contrary. The petitioner and the respondent were co-defendants in a property dispute. The respondent eventually made a counter-claim in this property dispute, which was allowed against the petitioner and other co-defendants..However, the trial court allowed this counter claim ex-parte, without hearing the petitioner. The petitioner contested the same and filed an application to set aside the ex-parte decree, claiming that he could not present his response as he was not informed of the proceedings..Notably, the trial court had dispensed with the appearance of the petitioner after the respondent produced a certified copy of a bailiff report stating that summons in the matter had been duly served upon the petitioner. In 2015, the trial court passed an order allowing the exhibition of a certified copy of this report as a certified copy of a public document..The trial court proceeded on the ground that a bailiff’s report was a public document under Section 74 of the Indian Evidence Act. Therefore, it accepted the certified copy of the bailiff report by itself as proof of valid summons on the petitioner..Once a document qualifies to be a public document under Section 74, the production of its certified copy becomes proof of the document’s contents under Section 77 of the Act. This means that a person filing a certified copy of the public document has no further burden to independently prove the contents of the document..In 2016, the trial court rejected an application filed by the petitioner for de-exhibiting the bailiff report. The petitioner had contended that the bailiff report is not a public document and therefore, the respondent had a burden to otherwise prove the service of valid summons. The trial court, however, opined that a bailiff report was a public document since it was in the prescribed proforma of the Court and since it had seal and signature of the issuing authority, as also the process server..However, after the petitioner filed a writ petition challenging this finding, the High Court has faulted the trial court’s finding, concluding that,.“Only the contents of the summons issued by the Court, consisting of name of the Court, name of the parties, seal of the Court and the returnable date stated in the summons could be said to be a public document. The report written by the bailiff on the reverse of the said document could certainly not be said to be a public document under Section 74 of the said Act.”.In doing so, it concurred with the view adopted in the Jharkhand High Court case of Junul Surin v. Silas Munda, while disagreeing with the view taken by the Madhya Pradesh High Court in Jagdish Prasad v. Daulatram and the (erstwhile) Oudh High Court in Balku v. King Emperor..The Court, therefore, allowed the petition. The trial court’s order allowing exhibition of the bailiff report as a public document and its rejection of the petitioner’s application to de-exhbit the bailiff report copy were quashed. The Bench ruled that the respondent has a burden to prove the valid service of summons in the case by examining the bailiff, who may then be cross-examined by the petitioner..“The burden [of proof] could not be said to be discharged by the respondent no.4 by merely producing certified copy of the said bailiff report written on the reverse of the summons, but it was for the respondent no.4 to have examined the bailiff to prove the existence of the fact of service of summons on the petitioner, on the strength of the said bailiff report. The petitioner could then cross-examine the said witness (bailiff).”.Read the Judgment:
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