This is the first part of a multi-part article series.
After much deliberation and doing a lot of research, I decided to write a multiple article series on a very important and hotly debated topic i.e., Marking Exhibits on Documents and How and When to Deal with the Objections that arise in such process. Since the topic is vast and there are various kinds of objections that are raised, it is not possible to confine the matter to a single article. So for the sake of convenience, ease, and in order to make the topic clear, it will be covered through a series of successive articles. Without wasting much time let’s start from the beginning.
The journey of a document in civil cases passes through three stages before it is held as proved or not proved or disproved. They are:
- Production of documents in court (In civil cases along with plaint or written statement or subsequently),
- Admission and exhibition (When it is tendered or produced in Evidence and once admitted by court it becomes part of judicial record), and
- Proof (or truth of contents) (At the final stage, preferably in Judgement)
What is marking of Exhibits
There is no legal definition of exhibits in any statute and the origin of the terms is out of customary practice. Hon’ble Delhi High Court in Sudhir Engineering Company v. Nitco Roadways Ltd[i], categorically held that the practice of exhibition or marking has evolved merely out of customary practice and is without any legal backing.
Most of the documents (except documents with which the opposite party is confronted) are already on the judicial file, at the stage of evidence, they are formally produced and given an identity by providing a nomenclature by using alphabets and letters. This is called marking of exhibits. Thereafter, those documents become evidence, subject to them being proved under the Indian Evidence Act, 1872 (IEA) and other laws.[ii]
What is the next step when Court admits a document in Evidence- How Exhibits are marked
Order 13 Rule 4 sub-rule (1) of the Civil Procedure Code provides as under:-
4.(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:
- the number and title of the suit,
- the name of the person who produced the documents,
- the date on which it was produced, and,
- a statement of its having been so admitted; and the endorsement shall be signed or initialled by the Judge.
According to Order 32 Rule 7, General Rules Civil and Criminal, 2018, framed by Hon’ble Rajasthan High Court, it states as:
a) Upon every document produced and admitted in evidence and proved before a Court shall be clearly marked the number it bears in the General Index of the case and the number and title of the case.
b) The Court shall mark the documents admitted in evidence on behalf of the prosecution with the letter ‘P’ and a numeral in the order in which they are admitted, thus:- Ex. P.1, Ex.P.2, and Ex. P.3, etc. and the documents admitted on behalf of the defence with the letter ‘D’ and numeral thus:- Ex.D.1, Ex. D.2, and Ex.D.3, etc.
c) In the same manner every material exhibit admitted in evidence on behalf of prosecution shall be marked with numerals in serial order followed by the word ‘ART’ as Ex. Art.1, Ex. Art.2, Ex. Art.3 and the material exhibit admitted on behalf of the defence shall be marked with the letter ‘A’ with numerals in serial orders viz. Ex. Art.A-1, Ex. Art.A-2 and Ex. Art. A-3, etc.
d) All exhibit marks on the documents and material exhibits shall be recorded in red ink and in block letters and shall be initialed with designation and dated by the Presiding Officer of Court.
e) No document or material exhibit, which has been admitted in evidence and exhibited shall be returned or destroyed until the period for appeal or revision has expired or until the appeal or revision has been disposed of.
f) Documents and material exhibits, which have not been admitted in evidence should not be made part of the record and should be returned to the party by whom they have been produced with an endorsement mentioning the number and title of the case, name of the person producing the document and by the word ‘returned’ endorsed on it, which shall be signed or initialed by the Presiding Officer.
What’s the purpose of Marking of Exhibits on the Document
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 he 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 about the document to which the witness was referring to which deposing.[iii]
The Common Misconception- Marking of Exhibits on Documents makes it Proved
It has to be understood that the court marks exhibits on a document when it decides to admit in evidence a particular document. Not every document which has been produced by the parties is admitted. Only those that are relevant to the facts in issue are exhibited subject to the kind of objections raised regarding their marking. Admitting in evidence means that court will consider that exhibited document in evidence. But admitting in evidence doesn’t make the document proved. What weightage court will attach to it will depend upon whether it stands proved in accordance with provisions of Evidence Act and then its probative value (ability to prove the fact in issue).
Supreme Court in Sait Taraji Khimechand vs Yelamarti Satvam[iv], held that, mere marking of an exhibit does not dispense with the proof of documents.
Two Division Benches of Lahore High Court in Ferozchin vs Nawab Khan[v], and Hari Singh vs Firm Karam Chand[vi], have clearly held that the admission of documents under Order 13 Rule 4 Civil Procedure Code does not bind the parties and unproved documents cannot be regarded as proved nor do they become evidence in the case without formal proof.
In Sudir Engineering Company vs Nitco Roadways Ltd as held by Delhi High Cout that the question of proof is not answered by Court during the statement of witnesses simultaneously with production of documents nor does the Court Master decide upon proof of documents. It makes it clear that endorsement of exhibit number on a document is ‘admission in evidence’ and not proof of a document. In this case while explaining the above point court took help from a previous precedent of Baldeo Sahai vs Ram Chander & Ors.[vii], and said:-
“There are two stages relating to documents. One is the stage when all the documents on which the parties rely are filed by them in Court. The next stage is when the documents proved and formally tendered in evidence. The word “proved” has been used by the Division Bench in the sense of ‘proposed to be proved’ as is clear from its having been used along with the word ‘tendered’ or “admitted” in evidence. The word proved has been loosely used for describing the stage after fling of the documents, when the Court would decide only whether they should be admitted or rejected. The Division Bench cannot be read as holding that the document is not to be endorsed with an Exhibit number unless and until proved. As stated hereinabove, the stages of tendering/admitting/rejecting in evidence and holding a document proved – are two distinct and different stages, not one. They are respectively the second and third stages. Admission of a document in evidence is not to be confused with proof of a document.”
At the stage of marking or exhibiting documents the truth of what is stated in the document is not considered and is left open to final evaluation at the trial after cross-examination is conducted and the entire testimony of the witness on the document is weighed. It is then that the court concludes the document speaks the truth or not and decides what weightage is to be given to it for arriving at a final decision in the matter. The final evaluation of the exhibited or marked documents would be by the court, at the time of final judgment, once cross-examination has been concluded. The court will conclude whether the contents of the documents are truthful or not while weighing the testimonies of the witnesses.[viii]
So it can be concluded that 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.
Who can raise Objections
Order VII rule 14[ix], Order VIII rule 8A[x], Order XIII rule 1 say as to Production of documents in court. At this stage the opposite party may not have a role to object. But the Court or even the office of the court (registry) can raise and note objection on the ground of insufficiency of stamp by virtue of the provisions of the Stamp Act. At the stage of evidence when documents are tendered then the party against whom documents are sought to be produced in evidence has the right to object regarding it being marked as an exhibit and the objection is not restricted solely to the document being insufficiently marked.
Kinds of Objection
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:-
- an objection that the document which is sought to be proved is itself inadmissible in evidence; and
- 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 before 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.[xi]
Why the Second Objection has to be raised promptly before marking exhibits on Documents
It is based on the 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 the 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 superior Court.
Privy Council in Padman and Others vs Hanwanta and Others [AIR 1915 PC 111] did not permit the appellant to take objection to the admissibility of a registered copy of a will in appeal for the first time. It was held that this objection should have been taken in the trial court. It was observed:
“The defendants have now appeal to the Majesty in Council, and the case has been argued on their behalf in great detail. It was urged in the course of the argument that a registered copy of the will of 1898 was admitted in evidence without sufficient foundation being led for its admission. No objection, however, appears to have been taken in the first court against the copy obtained from the Registrar’s office being put in evidence. Had such objection being made at the time, the District Judge, who tried the case in the first instance, would probably have seen that the deficiency was supplied. Their lordships think that there is no substance in the present contention.”
Similar is the view expressed by this Court in P.C. Purushothama Reddiar vs S. Perumal [1972 (2) SCR 646]. In this case the police reports were admitted in evidence without any objection and the objection was sought to be taken in appeal regarding the admissibility of the reports. Rejecting the contention it was observed:
“Counsel contended that the police reports referred to earlier are inadmissible in evidence as the Head-constables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it is not open to the respondent now to object to their admissibility.”
Hon’ble Supreme Court in the case of Lachhmi Narain Singh (D) Through Lrs and Ors. vs Sarjug Singh (Dead) Through LRs and Ors.[xii] Observed that:
“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 objection was raised before trial court, then the concerned party could have cured the mode of proof by summoning the original copy of document. But such opportunity may not be available or possible at a later stage. Therefore, allowing such objection to be raised during the appellate stage would put the party (who placed certified copy on record instead of original copy) in a jeopardy & would seriously prejudice interests of that party.”
To be continued…
[i] 1995 IIAD Delhi 189
[iii] Sudir Engineering Company vs Nitco Roadways Ltd. 1995 IIAD Delhi 189, 1995 (34) DRJ 86, 1995 RLR 286
[iv] AIR 1971 SC 1865
[v] AIR 1928 Lahore 432
[vi] AIR 1927 Lahore 115
[vii] AIR 1931 Lahore 546
[xi] R.V.E Venkatachala Gounder v. Arulmigu Viswesaraswami Vs. V. P Temple, (2003) 8 SCC 752
[xii] Civil Appeal No. 5823 OF 2011
ABOUT THE AUTHOR
Harshit is a trainee Civil Judge-cum-JMFC at Rajasthan Judicial Services, and a doctoral candidate (PhD) at NLU Jodhpur. He can be reached at firstname.lastname@example.org.