This is the second part of a multi-part article series by Harshit Sharma, Rajasthan Judicial Service. Read the first part here.
After going through the first part of the article series, it will be very clear to the readers as to what are exhibits and how they are marked. Now our focus will be on the kinds of objections that are usually raised while exhibits are marked and how to deal with such objections.
Kinds of Objections
In R.V.E. Venkatachala Gounder v Arulmigu Viswesaraswami & V.P. Temple & Anr.[i], it was held that, 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.
Objections as to Mode of Proof
Following are improper modes:
- Certified copy or photocopy produced without proving circumstances that entitles to give secondary evidence under Section 65 of the IEA. No secondary evidence other than that is recognised under Section 63 IEA can be validly tendered as secondary evidence.
When Secondary evidence can be allowed to be adduced
In Jagmail Singh vs Karamjit Singh[ii], the apex court held, for producing secondary evidence foundation need to be established. It can permit a party to produce secondary evidence if the party establishes a factual foundation for producing the same. Merely the admission in evidence and marking exhibit on a document does not prove it automatically unless the same has been proved in accordance with the law. It is at the stage of trial that the question regarding its genuiness, truthfulness and authenticity has to be decided. In addition it was also held that:
“A perusal of Section 65 makes it clear that secondary evidence may be given with regard to existence, condition or the contents of a document when the original is shown or appears to be in possession or power against whom the document is sought to be produced, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after notice mentioned in Section 66 such person does not produce it. It is a settled position of law that for secondary evidence to be admitted foundational evidence has to be given being the reasons as to why the original Evidence has not been furnished.”
Referring to some earlier decisions in this regard, the bench observed:
“It is trite that under the Evidence Act, 1872 facts have to be established by primary evidence and secondary evidence is only an exception to the rule for which foundational facts have to be established to account for the existence of the primary evidence.
In the case of H. Siddiqui (dead) by LRs v A. Ramalingam[iii], the Apex Court reiterated that where original documents are not produced without a plausible reason and factual foundation for laying secondary evidence not established it is not permissible for the court to allow a party to adduce secondary evidence.
Supreme Court in Dayamathi Bai vs K.M. Shaffi[iv], observed that the position of law stands same that once the document becomes incapable of being proved for want of primary evidence, the foundation of secondary evidence must be laid, without which, such secondary evidence is inadmissible. In the present case the objection was not that the certified copy of Ex.P1 is in itself inadmissible but that the mode of proof was irregular and insufficient. Objection as to the mode of proof falls within procedural law. Therefore, such objections could be waived. They have to be taken before the document is marked as an exhibit and admitted to the record (See: Order XIII Rule 3 of Code of Civil Procedure).
Failure of the opposite party to raise objection that secondary evidence is produced without laying factual foundation- Objections related to procedure once waived can’t be raised later on
Admission in evidence of a party’s document may in specified cases exclude the right of opposite party to challenge its admissibility. The most prominent examples are when secondary evidence of a document within the meaning of Sections 63-65 of the Evidence Act is adduced without laying foundation for its admissibility and there was no objection from the other side at that point of time. It is because of the fact the objection regarding Mode & Manner of Proof falls within procedural domain and if objections relating to procedure is not raised then and there, then it amounts to waiver and it can’t be raised by party subsequently.
These kind of objections 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 in such cases becomes fatal because the failure of the party who is 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.
To the same effect is the judgment of the Privy Council in the case of Gopal Das & Anr. v Sri Thakurji & Ors[v] reported in in which it has been held that when the objection to the mode of proof is not taken, the party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof. That when the objection to be taken is not that the document is in itself inadmissible but that the mode of proof was irregular, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record.
Similarly, in Sarkar on Evidence, 15th Edition, page 1084, it has been stated that where copies of the documents are admitted without objection in the trial Court, no objection to their admissibility can be taken afterwards in the court of appeal. So when a party gives in evidence a certified copy, without proving the circumstances entitling him to give secondary evidence, objection must be taken at the time of admission and such objection will not be allowed at a later stage.
- Objection that Document is Unstamped or not adequately stamped
What is Stamp Duty and on what kind of documents it is has to be paid
Stamp duty is paid as per the provisions of Section 3 of the Indian Stamp Act, 1899[vi]. Stamp duty is levied to boost revenue for local governments besides lending legality to a document. Stamp duty is a government indirect tax, which is levied on all legal property transactions. Stamp duty is, therefore, a tax which is evidence, as it were, of any purchase or sale of a property between two or more parties.[vii]
Physically transferring property is not considered valid in the eyes of the law. To make such a property transaction valid, the buyer must pay stamp duty, as proof of the purchase has occurred. This duty is computed as a function of the property’s value and is usually some percentage of the total payable amount. While the rate for stamp duty varies from state to state, the general underlying principle behind the duty remains the same. Stamp duty works as a legal tax which must be paid in full during the completion of a transaction. While the buyer usually pays the stamp duty, there are cases, when the buyer and seller decide to split the stamp duty as per an earlier signed agreement.[viii]
As per Section 13 of the Indian Stamp Act, 1899[ix], an individual executing a given instrument has to cancel the stamp (adhesive) by writing his initials or name across it. If a stamp is not cancelled in the aforementioned method, the document is considered unstamped. In other words, the stamp should be visible on the face of an instrument and therefore, cannot be applied to another instrument.
What is the right time to raise the objection relating to document being unstamped or insufficiently stamped
Supreme Court in Javer Chand & Ors vs Pukhraj Surana[x], while dealing with a question raised as to the admissibility of document on the ground that it has not been stamped or has not been properly stamped and the impact of Section 36 of Stamp Act[xi]. It was observed:
“….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 35[xii] is in the nature of a penal provision and has far-reaching effects. Parties to a 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….. It is not, therefore, one of those cases where a document has been advertently 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 case of Kanhaiya Lal v ADJ No. 1, Sri Ganganagar & Anr[xiii], Hon’ble Rajasthan High Court dealt with a case where trial court marked exhibit on a document while reserving the objection relating to document being insufficiently stamped to be decided at the time of judgment. It was held by the High Court that according to Section 35 Indian Stamp Act, 1899, once the objection about admissibility of document on account of it being insufficient stamped is raised during the examination of a witness or otherwise, it is imperative for the court to decide the said objection first and thereafter take proceedings in accordance with law.
Whether objection relating to Document being Unstamped or Insufficiently Stamped can be raised after it has been Admitted and Exhibited in evidence
In Javer Chand & Ors v Pukhraj Surana[xiv], it was held that:
“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.”
“That section (Section 36) is categorical in terms that when a document has 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 the 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 35 is in the nature of a penal provision and has far reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging 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 cases discloses the fact that the hundis were marked as Exs 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, s 36 of 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.”
Further in Barium Chemicals Ltd v Vishwa Bharti Mining Corporation & Anr[xv], it was opined that:
“The order of the High Court does not conform to the requirements of Sections 35 and 36 of Indian Stamp Act, 1899. A document which is not duly stamped and is also not registered though required to be registered can be admitted in evidence for collateral purposes under proviso to Section 49 of the Registration Act but so far as the stamp duty is concerned, if the document is not fully stamped it has to be dealt with under Section 35 of the Stamp Act before it is admitted in evidence failing which by virtue of Section 36, admission of document in evidence cannot be questioned at any later stage.”
In Sanjeev Bharadwaj v Yogeshwar Swaroop Bhatnagar[xvi], where the issue was order of Trial Court assigning an exhibit to an unregistered and unstamped agreement of sale could be removed, recalled or reviewed. It was held that an unregistered document can be taken into consideration for collateral purpose but an unstamped document cannot be admissible in evidence in view of the words “for any purpose whatsoever” in Sec. 35 of the Stamp Act. So once a document has been marked as an exhibit in the case and the trial has proceeded all along this footing Section 36 of Stamp Act comes into operation and it is not open either to the trial Court itself or to the Appellate or revisional Court to go behind that order. Such an order is not of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction.
[i] AIR 2003 SC 4548
[ii] Civil Appeal No. 1889 of 2020
[iii] Civil Appeal No. 6956 of 2004
[iv] Civil Appeal No. 2434 of 2000
[x] AIR 1961 SC 1655
[xiii] 2013 (1) DNJ (Raj) 309
[xiv] AIR 1961 SC 1655
[xv] (2009) 16 SCC 262
[xvi] 2016 (3) WLC (Raj) 94
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 email@example.com.