The Gujarat High Court clarified that documents obtained through the Right to Information Act do not automatically become public documents under Section 74 of the Evidence Act, and therefore cannot be admitted as secondary evidence without complying with the statutory requirements.
Background & Facts
The Dispute
The petitioners (defendants) are the original defendants Nos.1 and 3 to 10 in Special Civil Suit No.494 of 2011, filed by the respondents (plaintiffs) - original plaintiffs Nos.1 to 3 - for partition, maintenance, declaration and permanent injunction. The suit is pending before the Principal Senior Civil Judge, Surat.
Key Facts
- 16.01.2020: Trial court ordered status-quo, directed parties to file documentary evidence within 15 days and to conclude oral evidence within three months.
- 12.02.2020: Coordinate Bench of this Court heard an appeal against Order No.20 of 2020 and did not disturb the trial court’s order.
- 20.04.2021: Apex Court, in I.A. Nos.46643-46644 of 2021, directed the trial court to deliver a final judgment by 31.03.2022.
- 19.10.2022: Apex Court modified the earlier direction, ordering disposal within six months from the date the stay is vacated.
- 21.09.2021: Plaintiffs filed application Exh.300 seeking to exhibit documents listed in Exhibit 301, including serial Nos.12, 13 and 14 - completion certificates of bungalow Nos.61/A and 61/B of Nehrunagar Cooperative Housing Society and a family partition agreement - obtained from Surat Municipal Corporation (SMC) under the RTI Act.
- 25.11.2021: Trial court noted the petitioners’ objection to the three documents and ordered them returnable on 23.12.2021.
- 21.09.2021 (impugned order): Trial court allowed the three documents to be exhibited as Exhibit Nos.302-315, treating them as public documents.
- 28.07.2026: Petition filed under Article 227 of the Constitution seeking quash of the impugned order and a stay of the suit.
- 14.08.2026: Judgment delivered.
Procedural History
- 16.01.2020: Trial court issues status-quo and evidence filing order.
- 12.02.2020: Appeal to this Court; coordinate bench affirms trial court order.
- 20.04.2021: Apex Court directs final judgment by 31.03.2022.
- 19.10.2022: Apex Court modifies timeline to six months post-stay.
- 21.09.2021: Plaintiffs’ application Exh.300 to admit documents as exhibits.
- 25.11.2021: Trial court orders returnability of the three contested documents.
- 21.09.2021: Impugned order admits the three documents as public.
- 28.07.2026: Special Civil Application No.17104 of 2021 filed under Article 227.
- 14.08.2026: Judgment delivered.
The Parties' Positions
- Petitioners/Defendants: Argue that the three documents are private, that RTI copies are merely true copies and not certified copies, and that the trial court erred in treating them as public documents.
- Respondents/Plaintiffs: contend that the documents, being certified copies issued by a public authority under the RTI Act, qualify as public documents under Section 74(2) and are admissible as secondary evidence under Section 65(e) or (f).
Relief Sought
The petitioners seek quash and set-aside of the impugned order dated 21 September 2021, a stay of the suit pending determination of the issue, and direction to de-exhibit the three contested documents.
The Legal Issue
The central questions were: (i) Does a private document obtained under the Right to Information Act, 2005, become a “public document” within the meaning of sub-section (2) of Section 74 of the Evidence Act, 1872?; and (ii) Is a certified copy of such a document admissible as secondary evidence under Section 65(e) or (f) of the Evidence Act?
Arguments Presented
For the Appellant/Petitioner
- The petitioners relied on Deccan Paper Mills Co. Ltd. v. Regency Mahavir Properties (2021 SCC 786), Smt. Rekha Rana v. Smt. Ratneshree Jai (AIR 2006 MP 107), and Gopal Das v. Shri Thakurji (1943 AIR (PC) 83) to argue that a private document does not become public merely because it is kept by a public authority.
- They emphasized Section 74(2) requires the document to be a “public record kept in any State of private documents,” which is not satisfied by mere possession under RTI.
- They submitted that the RTI copies are “true copies” not “certified copies” within the meaning of Section 65, and therefore cannot be admitted without a foundation under clauses (a)-(c) of Section 65.
For the Respondent/State
- The respondents relied on Jagdishchandra Shah v. State of Gujarat (1989 Cri.LJ 1724) and the Supreme Court’s observation in N.N. Global Private Ltd. v. Indo Unique Flame Ltd. (2023 7 SCC 1) that a certified copy of a document kept as a public record is admissible as secondary evidence.
- They argued that the documents, being certified copies issued by the SMC under the RTI Act, fall within Section 65(e) as “public documents” and therefore the trial court correctly admitted them.
The Court's Analysis
The Court began by parsing the statutory language of Section 74 of the Evidence Act, noting that sub-section (2) expressly refers to “public records kept in any State of private documents.” It held that the mere fact that a private document is available in the possession of a public authority does not transform the document itself into a public record; only the record of the document, such as the entry in a register, acquires public status.
"The documents which are disputed by the defendants undoubtedly are private documents, inasmuch as they could not be said to be public documents in any manner whatsoever. Since these documents are not forming the acts or records of the acts of sovereign authority… it is required to be analyzed as to whether such documents can become public documents in light of sub-section (2) of Section 74…"
The Court examined the jurisprudence cited by both sides. It distinguished Gopal Das and Deccan Paper Mills on the ground that those decisions dealt with certified copies of registered documents, whereas the present documents were private and never entered as public records. The Court accepted the view expressed in Rekha Rana that a registered deed, while its entry in the register is public, remains a private document; consequently, a certified copy of the deed is a certified copy of a public record, not of the private document itself.
Turning to the RTI Act, the Court observed that the Act merely provides a mechanism for obtaining “true copies” of documents held by a public authority. Such copies do not acquire the statutory status of “certified copies” contemplated by Section 65 unless they are issued under a law that expressly permits certification, such as the Registration Act. Hence, the RTI copies of the three documents cannot be treated as certified copies under Section 65(e) or (f).
The Court then applied Section 65 of the Evidence Act. It held that secondary evidence of a document may be admitted only when the original is a public document (clause (e)) or when a certified copy is permitted by law (clause (f)). Because the three documents are private and the RTI copies are not certified under any statute, the conditions of clauses (e) and (f) are not satisfied. The Court therefore concluded that the trial court’s classification of the documents as public was a manifest error of law.
Finally, the Court addressed the procedural aspect under Article 227. While it recognized the need for expeditious disposal of the 2011 suit, it emphasized that the High Court must correct the legal error without disturbing other correctly admitted evidence.
The Verdict
The petition was partly allowed. The Court held that the three documents (serial Nos.12-14) are private documents and not public documents within the meaning of sub-section (2) of Section 74 of the Evidence Act, 1872. Consequently, the impugned order dated 21 September 2021 is modified to the extent that those three documents may be admitted only as secondary evidence subject to the conditions of Section 65. The documents are to be de-exhibited pending proper foundation. No costs were awarded. The trial court was directed to proceed with the suit and to exhibit the documents only after the plaintiffs satisfy the evidentiary requirements.
What This Means For Similar Cases
Private Documents Remain Private Even If Obtained via RTI
- An RTI-obtained copy does not alter the intrinsic nature of a document; it remains private unless a statutory provision declares it a public record.
- Practitioners must verify whether the original document qualifies as a public document before relying on RTI copies.
Certified Copies Require Statutory Basis for Admissibility
- Only copies certified under a law that expressly permits such certification (e.g., Registration Act Section 57(5)) qualify as secondary evidence under Section 65(e)/(f).
- RTI-issued “true copies” are not “certified copies” and therefore cannot be admitted without satisfying the foundation clauses of Section 65.
Burden on Party to Lay Foundation for Secondary Evidence
- The party seeking to rely on a private document must first prove its admissibility under Section 65(a)-(c) or produce a statutory certified copy.
- Failure to lay such foundation will result in the document being de-exhibited, as held in this case.
Actionable Takeaways
- Verify the status of a document (public vs private) before filing it as evidence.
- Obtain certified copies under the appropriate statute if you intend to rely on secondary evidence.
- Anticipate and be prepared to satisfy the foundation requirements under Section 65 when dealing with RTI-obtained documents.
