Parties rely upon various documents in their pleadings and/or enlist such documents in support of their pleadings or contentions. These documents can be taken on record by the court and read in evidence only if relied upon, produced, and exhibited in accordance with rules and settled principles laid down by the courts. This is a matter of vital importance often treated casually and overlooked. A document once admitted in evidence, without objection and marked as an exhibit by the court, becomes part of judicial record.
The question then arises as to whether it is open to the court to relook at the admission of such a document, not objected to when tendered and marked as an exhibit in evidence? When and in what circumstances is this permissible and when does such admission become a fait accompli and beyond the scope of judicial review? Often times, the process raises a conundrum for judicial officers and lawyers, particularly when an objection is raised after the document is already admitted on record and marked as an exhibit.
The present article proposes to deal with, in brief, about validly raised objections to admission (exhibition) of documents and the time at which such objections should be legally raised and entertained by the court in the course of recording evidence.
Admission of a document in evidence is different from proof of its contents. The latter, a separate topic by itself, is not dealt with herein.
Marking of exhibits
The courts have evolved the practice of marking of exhibits while recording evidence, as a matter of convenience and for ease of identification. The expression “exhibit” is not defined in the Code of Civil Procedure, 19081. The Code of Civil Procedure, 1908, contemplates admission and rejection of documents in evidence and the due endorsements to be made thereon by the court.
3. Rejection of irrelevant or inadmissible documents. ― The Court may at any stage of the suit reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection.
4. Endorsements on documents admitted in evidence. ― (1) Subject to the provisions of the next following sub-rule, there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars, namely: (a) the number and title of the suit; (b) the name of the person producing the document; (c) the date on which it was produced; and (d) a statement of its having been so admitted; and the endorsement shall be signed or initialled by the Judge.
The High Court of Delhi in Sudir Engg. Co. v. Nitco Roadways Ltd.4, has elucidated this practice of marking of exhibits as follows:
6. Let me now look at the law. Any document filed by either party passes through three stages before it is held proved or disproved. These are:
First stage: when the documents are filed by either party in the Court; these documents though on file, do not become part of the judicial record;
Second stage: when the documents are tendered or produced in evidence by a party and the court admits the documents in evidence. A document admitted in evidence becomes a part of the judicial record of the case and constitutes evidence;
Third stage: the documents which are held “proved, not proved or disproved” when the court is called upon to apply its judicial mind by reference to Section 35 of the Evidence Act. Usually, this stage arrives at the final hearing of the suit or proceeding.
* * *
13. Admission of a document in evidence is not to be confused with proof of a document.
14. When the court is called upon to examine the admissibility of a document it concentrates only on the document. When called upon to form a judicial opinion whether a document has been proved, disproved, or not proved the court would look not at the document alone or only at the statement of the witness standing in the box; it would take into consideration probabilities of the case as emerging from the whole record. It could not have been intendment of any law, rule or practice direction to expect the court applying its judicial mind to the entire record of the case, each time a document was placed before it for being exhibited and form an opinion if it was proved before marking it as an exhibit.
15. The marking of a document as an exhibit, be it in any manner whatsoever either by use of alphabets or by use of numbers, is only for the purpose of identification. While reading the record the parties and the court should be able to know which was the document before the witness when it was deposing. Absence of putting an endorsement for the purpose of identification no sooner a document is placed before a witness would cause serious confusion as one would be left simply guessing or wondering which was the document to which the witness was referring to which deposing. Endorsement of an exhibit number on a document has no relation with its proof. Neither the marking of an exhibit number can be postponed till the document has been held proved; nor the document can be held to have been proved merely because it has been marked as an exhibit.
16. This makes the position of law clear. Any practice contrary to the abovesaid statement of law has no sanctity and cannot be permitted to prevail.
17. Every court is free to regulate its own affairs within the framework of law. Chapter 13 Rule 36 abovesaid contemplates documents admitted in evidence being numbered in such manner as the court may direct. I make it clear for this case and for all the cases coming up before me in future that the documents tendered and admitted in evidence shall be marked with numerical serial numbers, prefixed by Ext. P if filed by plaintiff or petitioner and prefixed by Ext. D if filed by defendant or respondent.
Thus, once documents are admitted on record and marked as exhibits, they can be read in evidence and/or as evidence of transactions, subject to being proved under the Evidence Act, 18727 and other laws.
Types of objections and orders thereon
At the stage of evidence when documents are tendered in evidence, the opposing party has the right to object to the document being admitted in evidence and marked as an exhibit.
Objections are basically of three types:
(a) Objection to the document purely on ground of absence/insufficiency of stamp duty.
(b) Where the document is by itself admissible in evidence, but the objection is directed towards the mode of proof alleging the same to be irregular or insufficient.
(c) Objection that the document sought to be produced in evidence is ab initio inadmissible in evidence in terms of a relevant statutory provision, for instance under the provisions of the Registration Act, 19088, the Transfer of Property Act, 18829, etc.
In the first case, the court before which the objection is raised questioning admissibility of the document on the ground that it is not duly stamped, has to judicially determine the issue as soon as the document is tendered in evidence and before it is marked as an exhibit. A Bench of four Judges of the Supreme Court had the occasion to consider the question in Javer Chand v. Pukhraj Surana10. The Court held as follows:
4. …With reference to the provisions of Section 3611 of the Stamp Act, the High Court held that the plaintiffs could not take advantage of the provisions of that section because, in its opinion, the admission of the two hundis “was a pure mistake”. Relying upon a previous decision of the Rajasthan High Court in Ratanlal v. Daudas12, the High Court held that as the admission of the documents was pure mistake, the High Court, on appeal, could go behind the orders of the trial court and correct the mistake made by that court. In our opinion, the High Court misdirected itself, in its view of the provisions of Section 36 of the Stamp Act. Section 36 is in these terms:
Where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 6113, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.
That section is categorical in its terms that when a document has once been admitted in evidence, such admission cannot be called in question at any stage of the suit or the proceeding on the ground that the instrument had not been duly stamped. The only exception recognised by the section is the class of cases contemplated by Section 61, which is not material to the present controversy. Section 36 does not admit of other exceptions. Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Section 3514 is in the nature of a penal provision and has far-reaching effects. Parties to litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the court. The court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. The record, in this case, discloses the fact that the hundis were marked as Exts. P-1 and P-2 and bore the endorsement “admitted in evidence” under the signature of the court. It is not, therefore, one of those cases where a document has been inadvertently admitted, without the court applying its mind to the question of its admissibility. Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, Section 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the trial court itself or to a court of appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same court or a court of superior jurisdiction.
In the second case, the objection should be taken when the document is tendered and before it is admitted in evidence and exhibited. Failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of the document, which is sought to be produced, the document by itself being otherwise admissible in evidence. Once the document is admitted in evidence and is used in cross-examination, the document gets proved and can be read in evidence.
In the third case merely because a document has been marked as “an exhibit”, an objection to its admissibility is not excluded. It is available to be raised even at later stage of the suit or even in appeal or revision. There is no question of inadmissible documents being read into evidence merely on account of such document being given an exhibit number without any objection being raised by the opposite party or due to lack of judicial appreciation by the Court. For example, in case of unregistered sale deed or gift deed or lease deed requiring registration, the document itself is inadmissible and no evidence of the terms thereof can be given.
An important aspect to be borne in mind is, being let in evidence is different from being used as evidence of a transaction. This has been reiterated by the Supreme Court in Korukonda Chalapathi Rao v. Korukonda Annapurna SampathKumar15:
36. As far as Section 49(1)(c) of the Registration Act16 is concerned, it provides for the other consequence of a compulsorily registrable document not being so registered. That is, under Section 49(1)(a), a compulsorily registrable document, which is not registered, cannot produce any effect on the rights in immovable property by way of creation, declaration, assignment, limiting or extinguishment. Section 49(1)(c) in effect, reinforces and safeguards against the dilution of the mandate of Section 49(1)(a). Thus, it prevents an unregistered document being used “as” evidence of the transaction, which “affects” immovable property. If the khararunama by itself, does not “affect” immovable property, as already explained, being a record of the alleged past transaction, though relating to immovable property, there would be no breach of Section 49(1)(c), as it is not being used as evidence of a transaction effecting such property. However, being let in evidence, being different from being used as evidence of the transaction is pertinent (see Muruga Mudallar17). Thus, the transaction or the past transactions cannot be proved by using the khararunama as evidence of the transaction. That is, it is to be noted that, merely admitting the khararunama containing record of the alleged past transaction, is not to be, however, understood as meaning that if those past transactions require registration, then, the mere admission, in evidence of the khararunama and the receipt would produce any legal effect on the immovable properties in question.
In R.V.E. Venkatachala Gounder v. Arulmigu18, the Supreme Court has laid down the following salutary principles which have been followed in a catena of judgments:
20. The learned counsel for the defendant-respondent has relied on Roman Catholic Mission v. State of Madras19 in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as “an exhibit”, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court.
It would not be out of context to refer to another decision of the Supreme Court in Bipin Shantilal Panchal v. State ofGujarat20. The Supreme Court while dealing with the issue in the case of an undertrial prisoner, held as follows:
13. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fallout of the above practice is this: Suppose the trial court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or Revisional Court, when the same question is recanvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial court. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast, or remoulded to give way for better substitutes which would help acceleration of trial proceedings.
14. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections, the procedure suggested above can be followed.)
15. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.
16. We, therefore, make the above a procedure to be followed by the trial courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence.
The principle laid down in Bipin Panchal21 led to a divergence of opinions among the Judges of the High Court of Bombay, eventually leading to a reference to the Full Bench in Hemendra Rasiklal Ghia v. Subodh Mody22.
In Boman P. Irani v. Manilal P. Gala23, following the decision of the Supreme Court in Bipin Panchal24 the High Court of Bombay was pleased to hold that the documents in question may be taken on record and marked as exhibits tentatively subject to the objections raised by the defendants for decision at the last stage in the final judgment as a preliminary issue.
In Bharat R. Desai v. Naina Mohanlal Bhal25, the High Court of Bombay inter alia held as follows:
6. … The Court must proceed to resolve immediately thereupon questions as regards the proof and admissibility of documents. The question of proof and admissibility must be resolved by the Court in order to ensure that the cross-examination and re-examination, if any, then proceeds to take place on the basis of documents which have been held to be proved and which have been admitted in evidence. Deferring the question of proof and admissibility of documents to an uncertain date in the future is neither in the interests of justice nor does it subserve the object of expedition. The Court must therefore at the outset determine the question of proof and admissibility of documents.
The decision in Bharat R. Desai26 was distinguished and a similar view to the decision in Boman Irani27, albeit in relation to the evidence recorded by a Commissioner was expressed by another Single Judge of the High Court of Bombay in ONGC Ltd. v. FPU Tahara28.
Having regard to the conflicting views of the learned Single Judges of the High Court of Bombay and having regard to the importance of the question, it was found necessary to refer the following question for decision by a larger Bench in accordance with Rule 7 of Chapter I of the Bombay High Court (Appellate Side) Rules29:
Whether objections as to the admissibility or mode of proof of evidence, oral and documentary, should be decided upon when raised or whether decisions thereon can be deferred to a later stage?
While deciding the question referred, the Full Bench in Hemendra Rasiklal Ghia30 has inter alia held that:
61. Considering the provisions of law, it is not possible to reject a document admitted and exhibited in terms of Rule 4 in exercise of powers under Rule 631 of Order 13 of the Code of Civil Procedure, 1908. The Full Bench has held that a document can be exhibited in evidence only when such a document is admissible in evidence and not otherwise. If an admissible document is exhibited on establishing its proof, then such document cannot be de-exhibited or rejected. This is abundantly clear from the provisions of law contained in Rules 4 and 6 of Order 13 read with Para 524 of the Civil Manual. In fact, provisions of law contained in Rule 4 are to be read with Rule 6 of Order 13 of the Code of Civil Procedure and cannot be considered to be referable to two different stages. The question of exhibiting the document under Rule 4 can arise only if the document is found to be admissible in evidence and in case it is found to be not admissible, the same is to be rejected in terms of Rule 6 of Order 13 read with Para 524 of the Civil Manual. There is no provision enabling the Court to postpone the objection regarding admissibility or proof of document, as such one can safely rule that the question as to admissibility of document should be decided at it arises and should not be reserved until the judgment of the case is given.
The Full Bench in Hemendra Rasiklal Ghia32 has inter alia held that the correct procedure for raising objections and marking of documents in evidence is immediately when such objection is raised without postponing the decision thereon till the stage of final judgment. The relevant paras are extracted hereinbelow:
62. The various judgments of the Privy Council, the Supreme Court and various High Courts referred to hereinabove lean in favour of determining the question as to admissibility of document at the time of its reception or at the earliest possible opportunity. The reason is that if the Court allows the objection, the party tendering the evidence may take such steps as may be advised to get the lacunae remedied. Once inadmissible evidence is admitted on record, it is impossible to say what its effect may be on the mind of the person, who hears it. It creates atmosphere of prejudice affecting fair trial. It may, unconsciously, be regarded by judicial minds as corroboration of some piece of evidence legally admissible and thereby obtain for latter quite undue weight and significance.
* * *
86. Assuming that it is possible to take different view or work out different procedure as suggested in Bipin Shantilal Panchal33, as long as principle laid down in P.C. Purushothama Reddiar v. S. Perumal34, R.V.E. Venkatachala Gounder35 and Dayamathi Bai v. K.M. Shaffi36 has been consistently followed in our country in civil matters, as observed in Mishri Lal v. Dhirendra Nath37, it will be worthwhile to let the matter rest since a large number of parties have modulated and continue to modulate their legal relationships based on the settled law.
87. However, by way of exception, the objection relating to the admissibility of the document requiring resolution of complex issues, having effect of arresting progress of the matter, or if the admissibility of the evidence is dependent on receipt of further evidence, then, in such cases the trial court can, in the interest of justice, defer the issue of deciding admissibility of the document. In Ram Rattan v. Bajrang Lal38, the Supreme Court has also observed that in a given circumstance a document can be exhibited with the endorsement made by the learned trial Judge “objected, allowed subject to objection”, clearly indicating that the objection has not been judicially determined and the document was tentatively marked. This procedure is to be followed only in exceptional circumstances. Ordinarily, the objection to the admissibility of the document should be decided as and when raised without reserving the question as to admissibility of the document until final judgment in the case. We may make it clear that omission to object to a document, which in itself is inadmissible in evidence, would not constitute such document in evidence. It is also the duty of the Court to exclude all irrelevant evidence even if no objection is taken to its admissibility by the parties. The question of relevancy of the document being a question of law can be raised and decided at any stage of the proceedings.
In a recent decision in Lachhmi Narain Singh v. Sarjug Singh39, the Supreme Court has reiterated well-settled principles and held as follows:
25. In view of the foregoing discussion, it is clear that plea regarding mode of proof cannot be permitted to be taken at the appellate stage for the first time, if not raised before the trial court at the appropriate stage. This is to avoid prejudice to the party who produced the certified copy of an original document without protest by the other side. If such an objection was raised before the trial court, then the party concerned could have cured the mode of proof by summoning the original copy of document. But such an opportunity may not be available or possible at a later stage. Therefore, allowing such an objection to be raised during the appellate stage would put the party (who placed certified copy on record instead of original copy) in jeopardy and would seriously prejudice the interests of that party. It will also be inconsistent with the rule of fair play as propounded by Ashok Bhan, J. in R.V.E. Venkatachala40.
To summarise, in terms of the principles laid down by the Supreme Court and the Full Bench of the High Court of Bombay and other decisions:
(a) Admission of a document in evidence and giving it an exhibit number is a formal act, which does not dispense with proof of the document.
(b) As a general rule, objections are to be raised and decided at the time when the document is tendered and can neither be raised nor entertained thereafter.
(c) An objection to deficiency or defect of stamp duty has to be raised at the time the document is tendered in evidence and cannot be raised or entertained after the document is already admitted in evidence and exhibited.
(d) Similarly, objection as to mode of proof has to be raised before the document is admitted in evidence and exhibited failing which such objection is treated as waived.
(e) As regards a document which is ab initio inadmissible in evidence, notwithstanding that such document is admitted in evidence and given an “exhibit” number, the same would not render it a part of admissible evidence or preclude an objection thereafter. It is the duty of the Court to exclude all inadmissible evidence, even if no objection is taken to its admissibility by the parties (Hemendra R. Ghia41).
(f) The power of the Court is not fettered or limited to exclude an inadmissible document at a later stage of the same proceedings or even in appeal or revision and the bar of review is not applicable to such judicially inadmissible documents (Hemendra R. Ghia42).
(g) Mere cross-examination upon an ab initio inadmissible document would not render it admissible or proved in evidence. Such principle would apply only to a document which is itself admissible in evidence but suffers from the defect of deficiency of stamp duty or if the mode of its proof is irregular [i.e. a document in categories (a) and (b) above] (Hemendra R. Ghia43).
(h) In civil cases, ordinarily, the issue of admissibility is to be decided at the earliest and cannot be postponed to a later stage as can be done in a criminal trial (Hemendra R. Ghia44).
(i) Assuming that it is possible to work out a different procedure as suggested in Bipin S. Panchal45, and only by way of exception in a case which requires resolution of complex issues which may arrest the progress of the matter or if the admissibility of such evidence is itself dependent on receipt of further evidence, only then, the decision on admissibility can be deferred to a later stage, and not as a rule (Hemendra R. Ghia46).
(j) Postponement of adjudication on the issue of admissibility of a document to an uncertain future date, would thwart the course of cross-examination/re-examination and would neither subserve the interests of justice nor expedition.
(k) The mere fact that an ab initio inadmissible document has been marked as an exhibit in evidence and that cross-examination is conducted thereon without any objection from the parties and also overlooked by the Court, the objection can be raised even at the revisional or appellate stage and such evidence is liable to be rejected under Order 13, Code of Civil Procedure, 1908, at any stage. (See R.V.E. Venkatachala Gounder47 and Hemendra R. Ghia48 ).
(l) It is well settled that where evidence has been received without objection in direct contravention of an imperative provision of law, the principle on which unobjected evidence is admitted, be it acquiescence, waiver or estoppel is not available against a positive legislative enactment.
(m) A document which is ab initio inadmissible in evidence as well as the oral evidence led upon its terms are liable to be rejected in terms of Order 13 of the Code of Civil Procedure, 1908 at any stage of the proceedings, original, appellate or revisional.
† Government Advocate, High Court of Bombay at Goa, Standing Counsel, Income Tax Department, High Court Counsel to the Official Liquidator. Author can be reached at <email@example.com>.
6. Delhi High Court (Original Side) Rules, 1967, Ch. 13 R. 3.
29. Bombay High Court (Appellate Side) Rules, Ch.1 R. 7.