The Hon’ble Bombay High Court , in the matter of Sushilkumar Mandanlal Ganediwal vs Vijaykumar Mandanlal Ganediwal, dealt with the issue of whether the report of bailiff on a summons issued by a Court could be said to be public document under Section 74 of the Indian Evidence Act, 1872(“Act”) and consequently placing certified copy of the same would amount to proof of contents thereof under Section 77 of the said Act.
In the present case it was contended that since the bailiff went with the summons to serve the petitioner, on the directions and official act of the trial Court, the report written by the bailiff on the reverse of the summons formed part of a public document as defined under Section 74 of the said Act.
The Court held that treating a bailiff report of service of summons as in the present case, to be a public document under Section 74 of the said Act, would not be in consonance with law. The Court was of the view that 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 Hon’ble High Court of Bombay had relied on the decision of the Hon’ble High Court of Jharkhand in the case of Junul Surin .vs. Silas Munda, which held that
“9. There is distinction between the record of the Court and the record of the act of the Court. It is only record of act of the Court which is a public document. A report even if prepared in discharging official duty with regard to possession cannot be a public document so as to report of possession is taken as conclusive. The report in relation to possession cannot be taken as statutory report. What is stated in the report however has to be proved if the same is not accepted by other side. For example if a summon for settlement of issue or disposal of suits is issued under the seal of the Court directing the defendants to appear on a particular date this part of the summon, no doubt is a public document but the report of the process server with regard to service of summon made on the back of the report or on a separate sheet cannot take place of a public document. If the party disputes the report and the service of summons then the report has to be proved. Similarly, if a writ of attachment or writ for affecting delivery of possession is issued by the judicial or quasi judicial authority directing the officer or bailiff to effect delivery of possession then the report of the officer or bailiff certifying the execution of writ for delivery of possession cannot be taken as a public document and therefore, report of the officer effecting delivery of possession has to be proved.”
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