Saji Koduvath, Advocate, Kottayam.

Documents to be utilised in court has to pass through three steps. They are:

  1. Production of documents in court
  2. Admittance and exhibition.
  3. Proof.

Production and Admission in evidence

Order VII rule 14, Order VIII rule 8A , Order XIII rule 1 Civil Procedure Code say as to ‘Production‘ of documents in court at various stages. At these stages the opposite party may not have a right 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 concerned.

Order V rule 7 requires that the summons to the defendant to appear and answer shall order to produce all documents or copies thereof specified in rule 1A of Order VIII in his possession or power upon which he intends to rely in support of his case.

Order XIII rule 4 directs following endorsements on every document which has been admitted in evidence in the Suit:

  • (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.

Objection Regarding Admissibility of Documents – 2 counts

Disputes on admissibility of documents arise on 2 domains (See: Manakishore Lalbhai Vs. New Era Fabrics: AIR 2015 SC 3796). They are:

  1. Document which is ab initio (or inherently) ‘inadmissible’;
  2. Document liable to be objected on ‘mode or manner of proof’.

Even if an inherently-inadmissible document is marked, objections thereto can be raised ‘at a later stage’. Mode of proof (not inherent admissibility) falls within the realm of procedural law. Therefore, objection thereto can be waived.

Inherently-inadmissible documents

‘Inherent-inadmissibility of documents’ arises from the following:

  1. Irrelevancy
  2. Non-registration.

Section 5 of the Indian Evidence Act, 1872 deals with relevancy. It reads as under:

  • “5. Evidence may be given of facts in issue and relevant facts.—Evidence may be given in any suit or proceedings of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.
  • Explanation.—This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure
  • Illustration s (a) A is tried for the murder of B by beating him with a club with the intention of causing his death. At A’s trial the following facts are in issue:— A’s beating B with the club; A’s causing B’s death by such beating; A’s intention to cause B’s death.
  • (b) A suitor does not bring with him, and have in readiness for production at the first hearing of the case, a bond on which he relies. This section does not enable him to produce the bond or prove its contents at a subsequent stage of the proceedings, otherwise than in accordance with the conditions prescribed by the Code of Civil Procedure.”

In Jainab Bibi Saheb v. Hyderally Saheb, (1920) 38 MLJ 532, it was pointed out that neither an omission by an advocate to object to giving of irrelevant and inadmissible evidence nor the failure of the tribunal to exclude it of its own motion would validate a decree based on material which the Evidence Act declares to be inherently and in substance irrelevant to the issue. It was also held in this decision that the primary rule to prove relevant facts by the evidence of witnesses is to call them before the trial Judge and examine them viva voce in the manner stated in Chapter 10 of the Evidence Act.

Admissibility of Documents Determined First; Then only, Genuineness, veracity, etc.

The question of proof comes for consideration only if the first two steps (Production and Admittance) are successfully covered. In Anvar P.V. v. P.K. Basheer, AIR 2015 SC 180: (2014)10 SCC 473, it is held by our Apex Court as under:

  • “Genuineness, veracity or reliability of the evidence is seen by the court only after the stage of relevancy and admissibility.”

Document liable to be Objected on ‘Mode or Manner of Proof’

Following are improper modes:

  • Seeking exhibition through one who cannot vouchsafe veracity.
  • Inadmissible mode of secondary evidence. Eg:
    • Certified copy produced without proving circumstances that entitles to give secondary evidence under Sec. 65 of the Evd. Act.
    • No secondary evidence other than that is recognised under Sec. 63 can be validly tendered as secondary evidence.
  • Unstamped or insufficiently/improperly stamped document.

Objection to be raised – When document is admitted

It was observed by the Supreme Court in 2001 in Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158, that that ‘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’. And the Court directed as under:

  • “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.”

But, the subsequent decisions in R.V.E. Venkatachala Gounder: AIR 2004 SC 4082; Dayamathi Bai (2004) 7  SCC 107 took a contra view. It was held that the objection as to ‘mode of proof’ should be taken at the time of marking of the document as an exhibit, so that the defect can be cured by the affected party.

Discovery of Documents under O. XI r. 12 CPC and Question of Inadmissibility

The decision, M. L. Sethi v. R. P. Kapur, AIR 1972 SC 2379, emphasises that it is not necessary for an applicant under Order XI rule 12 to specify in detail the documents sought to be discovered when they are in the hands of the other side; and that the claim of privilege can be considered only after discovery, when the stage of production is reached. It is also made clear that if the document is relevant for the purpose of throwing light on the matter in dispute, though it might not be admissible in evidence, it can be put to discovery under rule 12.

Document Marked in Proof Affidavit, Court Records it – Objection in Cross Exam. – Effect

Our Procedural Codes do not specifically speak about it. Several propositions are seen raised.

  • Court evaluates documents only in Final Hearing. Hence, court cannot ignore the objection of the opposite party raised in cross examination.
  • For no objection at the time of ‘recording it by court’, objection raised in cross examination stand belated.
  • If a document ‘liable to be objected on mode or manner of proof,’ is allowed to be marked, or no objection is raised at that ‘proper’ time, subsequent cross examination is of no use.

It goes without saying that the pedantic approach in the latter propositions will adorn only over-scrupulous judges.

Rules as to Notice to Produce Documents

Order XI rule 15 and Order XII rule 8 are the provisions in the CPC to give notice to the other party to produce documents (for ‘inspection’ and ‘show court’, respectively).

See Blog (Click): Notice to Produce Documents in Civil Cases

Sec. 66 of the Evidence Act reads as under:

  • 66. Rules as to notice to produce.—Secondary evidence of the contents of the documents referred to in section 65, clause (a) , shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, [or to his attorney or pleader,] such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case.
  • Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:—
  • (1) when the document to be proved is itself a notice;
  • (2) when, from the nature of the case, the adverse party must know that he will be required to produce it;
  • (3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;
  • (4) when the adverse party or his agent has the original in Court;
  • (5) when the adverse party or his agent has admitted the loss of the document;
  • (6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.

See Blogs:

Courts to admit documents Without Proof

Sections 163 of the Evidence Act, reads as under:

  • 163. Giving, as evidence, of document called for and produced on notice: When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.

It is observed in Government of Bengal v. Santiram Mondal, AIR 1930 Cal 370, with respect to a document used under Sec. 163, as under:

  • “The further contention is that if they are to be admitted, they cannot be put in or at any rate used without proof. But the section itself says that the party calling for it is bound to give it as evidence if required to do so, and that certainly means that it goes in as a record of the particular proceeding and that it can be looked at to see what it includes or omits.”

In Government of Bengal v. Santiram Mondal, AIR 1930 Cal 370, and R v. Makhan, AIR 1940 Cal 167 it was observed that Section 163 of the Evidence Act applies to Criminal Proceedings also.

Documents Marked by Consent – Does Oral Evidence Need to Prove Contents

There are three different views on this matter. They are-

  • 1. There must be oral evidence. Even if consent is given for marking the documents, it will only absolve the parties from formally proving the documents and nothing beyond that. That is, though documents are marked by consent, they could not be relied on unless there is no oral evidence to prove their contents.
  • 2. Document stands proved. When documents are marked by consent, there is no further need for a formal proof of the documents, it would amount to proof of whatever the documents contained.
  • 3. If truth is in question it should be specifically proved by proper evidence. In most of the cases, the truth may not remain in question if the contents thereof are proved. But, in rare occasions, even if contents of documents are proved, truth thereof may remain (expressly or implicitly) in question or unrevealed.

Court’s Jurisdiction to Require to Prove an Admitted Document

Sec. 165 of Evidence Act gives wide powers to court to produce any document. Sec. 165 reads as under:

  • 165. Judge’s power to put questions or order production.—The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:
  • Provided that the Judgment must be based upon facts declared by this Act to be relevant, and duly proved:
  • Provided also that this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.

Besides the powers of the court under Sec. 165 Evidence Act, the scheme of the Procedural Acts (Evidence Act, CPC and CrPC) shows that the courts have jurisdiction to require the party concerned to prove any document despite the admission of the opposite party and the provisions in the Evidence Act as to presumptions. (See: Proviso to Sec. 58 of Evidence Act, Order XII, Rule 2A Proviso of the CPC and Sec. 294 of the CrPC.) 

Sec. 58 of Evidence Act reads as under:

  • 58 Facts admitted need not be proved. —No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:
  • Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.

Order XII, Rule 2A reads as under:

  • 2A. Document to be deemed to be admitted if not divided after service of notice to admit documents. (1) Every document which a party is called upon to admit, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of that party or in his reply to the notice to admit documents, shall be deemed to be admitted except as against a person under a disability :
  • Provided that the Court may, in its discretion and for reasons to be recorded, require any document so admitted to be proved otherwise than by such admission.
  • (2) Where a party unreasonably neglects or refuses to admit a document after the service on him of the notice to admit documents, the Court may direct him to pay costs to the other party by way of compensation.

Section 294 of Code of Criminal Procedure reads as follows:

  • “294. No formal proof of certain documents. (1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.
  • (2) The list of documents shall be in such form as may be prescribed by the State Government.
  • (3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed:
  • Provided that the Court may, in its discretion, require such signature to be proved.”

Read Blog: Admission of Documents in Evidence on ‘Admission’

Who Should Object FIRST–Court or Opposite Side?

There is divergence of judicial opinion as to saying ‘NO’ by court to marking a document with formal defect, beforehand it is objected by the other side. Eg. Tendering copy of a document without furnishing the ‘foundational evidence’ to admit secondary evidence.

First viewCourt is under an obligation to exclude inadmissible materials.
Second viewIf no objection for other side, Court cannot refrain from marking a document on its own volition (on the ground of formal defect).

First view: Court is under an obligation to exclude.

S. 65, Evidence Act enumerates the instances where a party is entitled to furnish secondary evidence.  It is a condition precedent to establish the circumstances laid down in S. 65, for letting in secondary evidence of a document.  Pointing out the right and duty of the court to prevent rushing of inadmissible and irrelevant evidence, it is held in a good number of decisions that the court is under an obligation to exclude such materials, at the threshold. [See: Yeshoda Vs. Shoba Ram:  AIR 2007 SC 1721; U. Sree  Vs.  U. Srinivas: AIR 2013 SC 415]

H. Siddiqui Vs. A. Ramalingam: AIR 2011 SC 1492 it is held as under:

  • “The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon.”

Second view: If no objection, Court has to mark

It is beyond doubt that marking of documents lie in the realm of procedural law.  Therefore, a catena of decisions emphasize that it is a matter that falls for the opposite party to waive strict formal proof.  That is, the court should not delve to object marking of a secondary evidence, if the opposite party has no objection.  [See:  RVE Venkatachala Gounder Vs. Arulmigu Viswesaraswami: AIR 2003 SC  4548;  Narbada Devi  Vs. Birendra Kumar: 2003-8 SCC 745; Dayamati Bai Vs. K.M. Shaffi :2004 SC 4082;  Oriental Insurance Co Vs. Premlata:  2007-8 SCC 575] Karnataka High Court pointed out in Nanda Behera v. Akhsaya Kumar Behera, 2017AIR (CC) 1893, that once the Court, rightly or wrongly, decides to admit the documents in evidence, so far as the parties are concerned, the matter is closed. This principle is followed in the following cases, with respect to insufficiently stamped document:

  • Pankajakshan Nair v. Shylaja: ILR 2017-1 Ker 951;
  • Dundappa v. Subhash Bhimagouda Patil: 2017-3 AIR(Kar)(R) 570;
  • Savithramma R. C. v. Vijaya Bank; AIR 2015 Kar 175;
  • Jayalakshmamma v. Radhika: 2015 4 KarLJ 545;
  • K. Amarnath v. Smt. Puttamma: ILR 1999 Kar. 4634

In the light of the Supreme Court decision in K.B. Saha and Sons Private Limited (that a document required to be registered is not admissible in evidence under section 49 of the Registration Act; and such unregistered document can only be used as an evidence of collateral purpose), it appears that the observation of the Karnataka High Court in Nanda Behera v. Akhsaya Kumar Behera, 2017AIR (CC) 1893, that once the Court, rightly or wrongly, decides to admit the documents in evidence, so far as the parties are concerned, the matter is closed, is not applicable to unregistered (compulsorily registrable) documents.

Oral Evidence on contents of Documents – No Use, Unless Secondary Evidence Entitled

Sec. 22 and 144 of the Evidence Act postulate that the oral admissions or assertions as to contents of documents are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under Sec. 65, or unless the genuineness of a document produced is in question.

Sec. 22 emphasises that oral evidence as to contents of documents , even if adduced, will be of no use, as it will be ‘irrelevant’. By virtue of Sec. 144 of the Evidence Act, the adverse party may object to giving oral evidence as to contents of the same until such document itself is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.

Sec. 22 of the Evidence Act reads as under:

  • 22. When oral admissions as to contents of documents are relevant.—Oral admissions as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuineness of a document produced is in question.

Sec. 144 of the Evidence Act reads as under:

  • 144. Evidence as to matters in writing.—Any witness may be asked, whilst under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.
  • Explanation.—A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts.
  • Illustration. The question is, whether A assaulted B. C deposes that he heard A say to D—”B wrote a letter accusing me of theft, and I will be revenged on him”. This statement is relevant as showing A’s motive for the assault, and evidence may be given of it, though no other evidence is given about the letter.

Sec. 59 of the Evidence Act lays down that contents of documents (or electronic records) are to be proved by oral evidence.  Sec. 62 defines primary evidence to mean ‘the document itself’ produced for the inspection of the Court. Sec. 64 of the Act requires that that the documents to be proved primarily by ‘primary evidence’, except in cases where secondary evidence is provided under Sec. 65.  

Sections 22, 59, 61, 62 and 64 of the Evidence Act project the ‘rule of best evidence’ and it directs that the contents of the document are to be proved by the original document itself, unless secondary evidence is provided under Sec. 65. (See: Bimla Rohal v. Usha, 2002-2 HLJ 745; 2002-2 Shim LC 341)

Sec. 91 and 92 provides that when terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, their terms alone are taken to be the sources of what the parties wished to state; and oral evidence to the contrary, are excluded. Both these provisions are based on “best evidence rule”. (Roop Kumar v. Mohan Thadani AIR 2003 SC. 2418: 2003-6  SCC 595; S. Saktivel v. M. Venugopal Pillai 2007-7  SCC 104; Mumbai International Airport v. Golden Chariot Airport, (2012) 10 SCC 422; Tulsi v. Chandrika Prasad, AIR 2006 SC 3359).

The Supreme Court held in Roop Kumar v. Mohan Thedani: AIR 2003 SC 2418, as under:

  • “The grounds of exclusion of extrinsic evidence are (i) to admit inferior evidence when law requires superior would amount to nullifying the law, (ii) when parties have deliberately put their agreement into writing, it is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory.”

However, oral evidence can be given on a matter (adoption) which is not required by law to be in writing and it is not barred for the mere reason it was contained in a document (Jahuri Sah v. Dwarka Prasad Jhunjhunwala, AIR 1967 SC 109).

In Perumal Chettiar VS Kamakshi Ammal, AIR 1938 Mad 785; ILR 1938 Mad 933, it is held as under:

  • “Section 22 of the Indian Evidence Act adopted the stricter view and relegated oral admissions as to the contents of a document to the category of ‘secondary evidence’. The result, in India, is that if by reason of the document being unstamped, no evidence of its contents whether primary or secondary is admissible, evidence of admissions by the defendant is equally inadmissible. The position may be different where admissions are made in the pleadings themselves (cf. Huddleston v, Briscoe (1805) 11 Ves. 583 : 32 E.R. 1215 and Thynne v. Protheroe (1814) 2 M. & S. 553 : 105 E.R. 488 because by reason of Section 58 of the Evidence Act, it may not be necessary to prove admitted facts and the objection under Section 91 will not arise unless the plaintiff is called upon to go into evidence. (Mallappa v. Mat an Naga Chetty (1918)35MLJ555 This was the position in Pramatha Nath Sandal v. Dwarka Nath Dey (1896) I.L.R. 23 Cal. 851; cf. however Chenbasappa v. Lakshman Ramchandra I.L.R.(1893) 18 Bom. 369 where it was suggested that in a suit on an unstamped promissory note, even an admission in the written statement may not avail the plaintiff, as the Court when giving a decree on such admission may be “acting on” the document within the meaning of Section 35 of the Stamp Act; see also Ankur Chunder Roy Chowdhry v. Madhub Chunder Gkose (1873) 21 W.R. 1.”

Words in the Instruments Matters; Not to the Presumed Intention

Brett L.J. in Re Meredith, ex parte Chick, (1879) 11 Ch D 731, observed as under:

  • “I am disposed to follow the rule of construction which was laid down by Lord Denman and Baron Parke ……. They said that in construing instruments you must have regard not to the presumed intention of the parties, but to the meaning of the words which they have used.” (Quoted in: Thomas v. AA Henry, 2008(2) KLT 63.)

Read in this Cluster  (Click on the topic):

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Land LawsTransfer of Property Act

Evidence Act – General

Contract Act


Stamp Act


Book No. 2: A Handbook on Constitutional Issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

1 Comment

  1. Bhupendra M Patel says:

    Thanks for useful information.

    Liked by 1 person

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