A party can refuse to produce a document and still use it later if it turns out to help their case.

The law says once you refuse production after proper notice, you lose the right to use that document later without the other party's consent or the court's permission.

This rule permanently bans the document from ever being used in any case.

The bar applies to that party using it in that proceeding without consent or court order; the court retains discretion to allow it in appropriate circumstances.

Bharatiya Sakshya Adhiniyam, 2023

Section 167

Using, as evidence, of document production of which was refused on

When a party refuses to produce a document which he has had notice to produce, he cannot afterwards use the document as evidence without the consent of the other party or the order of the Court. Illustration. A sues B on an agreement and gives B notice to produce it. At the trial, A calls for the document and B refuses to produce it. A gives secondary evidence of its contents. B seeks to produce the document itself to contradict the secondary evidence given by A, or in order to show that the agreement is not stamped. He cannot do so.§

Why this exists

This rule exists to stop parties from playing games with evidence. If a party could refuse to produce a document (forcing the other side to rely on weaker secondary evidence like copies or oral accounts) and then later spring the original document to contradict that secondary evidence or gain a tactical advantage, it would be deeply unfair. The provision, carried forward from the old Indian Evidence Act's Section 164, ensures that once someone chooses to withhold a document despite notice, they must live with that choice and cannot use the document opportunistically later in the same proceeding.

How courts read it

Under the predecessor provision (Section 164 of the Evidence Act, 1872), courts consistently held that this rule is meant to prevent a party from gaining an unfair tactical advantage — such as ambushing the opponent's secondary evidence with the original document, or using the original for technical objections like insufficient stamping — after having earlier refused to produce it. Courts have treated the party's silence or refusal upon notice as a kind of election that binds them for the rest of that trial.

Common misconceptions

Myth: A party can refuse to produce a document and still use it later if it turns out to help their case.
Fact: The law says once you refuse production after proper notice, you lose the right to use that document later without the other party's consent or the court's permission.
Myth: This rule permanently bans the document from ever being used in any case.
Fact: The bar applies to that party using it in that proceeding without consent or court order; the court retains discretion to allow it in appropriate circumstances.