Marking of Photocopy and Law on Marking Documents on Admission (Without Formal Proof)

Abridged From: Can the Court Refuse to Mark a (Relevant and Admissible) Document, for (i) there is No Formal Proof or (ii) it is a Photocopy?

Saji Koduvath, Advocate, Kottayam.

Introspection

Can the Court Refuse to Mark a (Relevant and Admissible) Document, for (i) there is Irregularity in Mode of (Formal) Proof or (ii) it is a Photocopy?

  • Answer: No, the Court Cannot.

It is for the following two main reasons –

  • First, Right of undertaking: Sec. 136, Indian Evidence Act, 1872 permits a party to furnish a fact before proving it formally, if “the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking”.
  • Second, Right to Admit: Marking a document unopposed (by the opposite party), or the opposite party acquiesces irregularity of mode adopted for proving the document, amounts to waiver (of rights with the opposite side). It is based on the principles in Sec. 58, Evidence Act which directs that ‘facts admitted need not be proved’.

Proof of Document is, Normally, Proof of (both) Execution and Contents

  • When existence of a document is proved (either by admission or by proof), normally, Contents thereof are also taken as proved.
  • In most cases, ‘proof of execution’ may lead the court to presume ‘proof of truth’. But, it is not a rigid rule, for it falls under the caption, “appreciation of evidence”.
  • Evidence Act does not expressly proffer anything as to “TRUTH of contents” of documents. It is left to the discretion (Sec. 3) of the court. In proper cases court is expressly authorised to presume (Sec. 114) truth.

Therefore, by virtue of our procedure-laws (especially, Sec. 3 and 114 Evidence Act) and the law handed down by our Apex Court, the Courts are free to appraise that marking of a document –

  • 1. Contents and ‘Truth of its Contents’ stand proved, or
  • 2. Mere marking does not amount to proof of contents (even), or
  • (3) admission of contents; not truth of contents (especially when truth is in issue), or
  • (4) admission of contents and truth of contents; but, its probative value is small or nil.

PART I

Documents Marked Without Objection as to MODE OF PROOF – Effect, Waiver

The law prevails in India is the following –

  • If documents are marked without objection as to its mode of proof,  it is not open to the other side to object to their admissibility afterwards.

Following are the decisive authorities in this line.

P.C. Purushothama Reddiar v. S. Perumal,(1972) 1 SCC 9 (Three Judge Bench – A.N. Grover, K.S. Hegde, A.N. Ray, JJ.)Admissibility of police reports without examining the Head Constables who covered those meetings. Those reports were marked without any objection.  Hence it was not open to the respondent to object to their admissibility.Relied on: Bhagat Ram v. Khetu Ram, AIR 1929 PC 110.
R.V.E. Venkatachalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752 (R.C. Lahoti, Ashok Bhan, JJ.)Photo copies were admitted in evidence without leading foundation – without objection. They cannot be held inadmissible for originals were not produced.Relied on: Padman v. Hanwanta, AIR 1915 PC 111 P.C. Purushothama Reddiar v. S.Perumal
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082Objection to be taken    at     trial before document is marked as an ‘exhibit’.   Relied on: Gopal Das v. Sri Thakurji R.V.E. Venkatachala Gounder
PC Thomas v. PM Ismail (R.M. Lodha, D.K. Jain, JJ.), AIR 2010 SC 905; 2009-10 SCC 239.Non-examination of Witness to Prove Truth-
If no objection on ‘mode of proof’ in trial court, it will be too late (in appeal) to raise objection on the ground of mode of proof – that is, “non production of John K as a witness”		…
Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 ACJ 616; 1986 Guj LH 27; 1985-2 GujLR 1315No objection about the truth of contents of Ex. 32. The witness of the defendant accepted the contents. Therefore, too late in the day to canvass that contents of Ex. 32 were not proved…
Sarkar on Evidence .If copies of the documents are admitted without objection in the trial Court, no objection can be taken in appealReferred to in:
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.

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 view
Court is under an obligation to exclude inadmissible materials.		H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492 (Followed in: U. Sree  v.  U. Srinivas: AIR 2013 SC 415.)
Yeshoda v. Shoba Ram:  AIR 2007 SC 1721
Second view
The court cannot object first.
If no objection for other side, Court cannot refrain from marking a document on its own volition (on the ground of formal defect).		R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.

First View: Court is under an Obligation to Exclude

In H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492, it is held:

  • “Mere admission of a document in evidence does not amount to its proof. … The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon.” (Followed in: U. Sree  v.  U. Srinivas: AIR 2013 SC 415.)

In Yeshoda v. Shoba Ram:  AIR 2007 SC 1721, it is held:

  • “In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. .. The conditions laid down in the said Section (Section 65) must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section.

Second and Typically Followed View

  • 1. ‘Failure to raise timely objection‘ as to the irregularity of mode adopted for proving the document “amounts to waiver“.
    • R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P.Temple, (2003) 8 SCC 752;
    • Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.
  • 2. If the deficiency is pertaining to non-registration of a compulsory registrable document (as it falls under the head, inadmissible document) the court can desist the marking of the document.
  • 3. By virtue of the decision, G. M. Shahul Hameed v. Jayanthi R. Hegde, AIR 2024 SC 3339, unless the court has not applied its mind to the insufficiency of stamp, and unless there is a ‘judicial determination‘, the objection thereof can be raised at any time.

Failure to Raise Objection as to Irregularity of mode, Amounts to Waiver

In RVE Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: 2003-8 SCC 752 it is held “failure to raise timely objection” as to the irregularity of mode adopted for proving a document “amounts to waiver“.

  • (Therefore it is clear that ‘objection’ is a matter that primarily remains in the realm of the opposite party; rather than the court).

In RVE Venkatachala Gounder, our Apex Court held as under:

  • “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 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. The later 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 the parties. Out of the two types of objections, referred to hereinabove, in the later 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.”

Admission by the other side, Proves Contents – No Blindfold Application

Court has wide powers under Sec. 165 of Evidence Act to require evidence to prove a document marked on ‘admission’. Besides the powers under Sec. 165, the Procedural Acts show that the courts have jurisdiction to require the party concerned to prove admitted-documents. It is evident from the Provisos of –

  • Sec. 58 of Evidence Act
  • O. XII, r. 2A, CPC and
  • Sec. 294 of the CrPC.

The Courts are free to refrain from acting upon any document, in the particular nature of a case, especially when the Court feels that injustice will be resulted by the blindfold application of this principle (admission of a document by the other side, proves its contents also), for it falls under the caption, “appreciation of evidence”. It is the reason why the courts refuse to apply this principle in certain cases, saying –

  • (i) Contents are ‘not proved’ (Though signature Proved)
  • (ii) Truth of contents are ‘not proved’ (Though contents Proved)
  • (iii) Probative value of the document is small or nil (Though contents and truth Proved).

Proof must be by one who can Vouchsafe for Truth – Not Beseem in All Cases

The normal rule as to proof of execution is made clear in Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745, under the following words –

  • “Its execution has to be proved by admissible evidence, that is, by the evidence of those persons who can vouchsafe for the truth of the facts in issue”.

Though it is the “normal principle” that proof must be by one who can vouchsafe for truth (Assistant Commissioner of Customs v. Edwin Andrew Minihan, ILR 2024-1 Ker 596; 2023-7 KHC 512; 2024-1 KLT 24), it may not be correct in all cases; because, (besides documents ‘admitted’ by the other side) there may be cases where proof as to ‘existence and contents’ of a document can be given by a witnesses who cannot vouchsafe truth – e.g., a letter or a deed obtained by a witness in ‘due/common course’. In such cases, if ‘truth’ as to the contents of the document is in dispute, it has to be proved by a competent person.

Relevant Provisions as to Appreciation of Evidence – Sec. 3 & 114, Evid. Act

The definition of “Proved” in Sec. 3 gives vast discretion to the court. It reads as under:

” ‘Proved‘ — A fact is said to be proved when, after considering the matters before it, the Court; either BELIEVES it to exist, or CONSIDERS its existence so PROBABLE that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.”

Sec. 114 reads as under:

“114. Court may presume existence of certain facts —The Court may PRESUME the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”
  • “Any fact” may include “truth” of contents of documents.

Relevancy of Evidence

Sec. 5 and 136 of the Evidence Act stipulate that evidence can be given only on ‘facts in issue’ or ‘relevant facts’. Relevant facts are enumerated in Sec. 6 onwards.

Sec. 5 Evidence Act, 1872 deals with Relevancy

Sec. 5 of the Indian Evidence Act, 1872 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

Sec. 136, Evidence Act – Permits Evidence on Undertaking of the Party

Sec. 136, Evidence Act permits to furnish a fact before proving it formally, if “the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking”. It reads as under:

“S. 136. Judge to decide as to admissibility of evidence.
             When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.
             If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking.
             If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.”

Court can Reject ‘Irrelevant’ or ‘Inadmissible’ Document At Any Stage

Order 13 Rule 3 CPC reads as under:

“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.

It is pertinent to note that Order 13 Rule 3 CPC speaks as to the rejection of irrelevant and inadmissible documents at any stage of the suit. It does not deal with the probative value of a document or marking/exhibiting the same in evidence. The courts can adjudicate the matters before them only on the basis of substantive evidence.

Court Cannot Discard Documents, Straight Away. It has to be marked ‘subject to proof’

When a ‘relevant’ and ‘admissible’ document is tendered in evidence, otherwise than through its executant (or a witness to the document) –

  • Can it be discarded outright by the Court, pointing out – no ‘formal proof’?
  • What will be the situation if the opposite side does not raise objection (or expressly say – they have no objection) to such marking?
  • Can a copy of a document be marked without ‘foundational evidence’, on admission?

It is definite –

  • The court cannot discard such documents, straight away.
  • It has to be marked ‘subject to proof’ or ‘subject to objection’, as it is the practice followed. The law also supports it.

Admission is a Mode of Proof; ‘Facts Admitted Need Not be Proved’

Usually, a document is proved through its author, or through a witness or a person acquainted with handwriting. Admission by the opposite side is an acceptable form of proving documents in evidence (under Sec. 17, 21, 58, 59 Evidence Act). Even ‘Truth of the contents’ of documents can also be established by concession or admission from the other side (“at the hearing”).

Sec. 58, Evidence Act reads as under:

“58. Facts admitted need not be proved: No fact need 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 or 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.”

Sec. 58 says that no fact need be proved in any proceeding in three circumstances:

  1. the parties or their agents agree to admit at the hearing
  2. before the hearing, they agree to admit by any writing under their hands
  3. by any rule of pleading they are deemed to have admitted by their pleadings.

“Hearing” Partakes ‘recording evidence’

Legal implication of the term ‘hearing’ is clear from Rule 2 (1) of Order XVIII (Hearing of the suit and examination of witnesses) of the CPC – that is, hearing partakes ‘recording evidence’.

Admissions – by the Advocate – at Hearing

Admissions (at ‘hearing’) – by the advocate – may be made at the evidence-stage (while the witnesses are examined) and at the time of ‘final hearing’. Admissions by advocate are to be deciphered from Judgment (Sarcar) or Order-sheet.

Admissions are Substantive Evidence By Themselves

In Bharat Singh v. Bhagirathi, AIR 1966 SC 405: 1966-1 SCR 606, it was observed as under:

  • “Admissions are substantive evidence by themselves, in view of ss. 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted.”

Bharat Singh v. Bhagirathi is quoted/referred to in:

  • Dipakbhai Jagdishchandra Patel v. State of Gujarat, AIR 2019 SC  3363; 2019-16 SCC 547.
  • Union of India v. Moksh Builders And Financiers Ltd., 1977 AIR SC 409; 1977-1 SCC 60.
  •  Bishwanath Prasad v. Dwarka Prasad AIR 1974 SC 117, 1974-1  SCC 78,
  • Sita Ram Bhau Patil v. Ramchandra Nago Patil, (1977) 2 SCC 49,
  • Priya Bala Ghosh v. Suresh Chandra Ghosh, AIR 1971 SC 1153; 1971-1 SCC 864.

In the case of Murlidhar Bapuji Valve v. Yallappa Lalu Chougule, AIR 1994 Bom 358, it was held that an “admission” made by a party in a sale deed was liable to be considered as substantive evidence, and there was no need to confront the witness with the statement.

Marking Documents “Subject to Objection or Proof”

In M.  Siddiq v. Mahant Suresh Das, (Ayodhya Case), 2020-1 SCC 1, the practice of marking documents “subject to objection and proof” was referred to as under:

  • “539. On 7 February 2002, counsel for the plaintiffs in Suit 5 filed a report dated 3 February 2002 before the High Court of Dr. KV Ramesh, pertaining to the “Ayodhya Vishnu Hari temple inscription”. The documents were taken on record “subject to objection and proof” as required by the provisions of the Evidence Act 1872. ….”

The practice of exhibiting documents ‘subject to proof and relevancy’ is also referred to in –

  • Jarnail Singh v. State of Punjab, 2022-10 SCC 451 (photocopy),
  • Uttaradi Mutt v. Raghavendra Swamy Mutt, 2018-10 SCC 484,
  • Ameer Minhaj v. Dierdre Elizabeth (Wright) Issar, 2018-7 SCC 639,
  • Nandkishore Lalbhai Mehta v. New Era Fabrics Pvt.  Ltd., 2015-9 SCC 755,
  • State of Bihar v. PP Sharma, AIR 1991 SC 1260: 1992 Supp1 SCC 222,
  • Nilavarnisa v. MM  Faizal, 2019-1 KHC 699; 2019-1 KLT 652.

PART II

Effect of Marking Documents without Objection

Following two things are different processes –

  • (i) admission or exhibiting of a document in evidence; and
  • (ii) proving the ‘truth of its contents‘ (or veracity of the same).

But, in certain cases, as comes out from Sec. 56, 57 and 58 of the Evidence Act, when a document is admitted, or marked without objection separate proof as to ‘truth of contents’ may not be warranted.

  • Similarly, separate proof need not be required when presumptions (Sec. 114, Evidence Act) can be invoked (e.g. document in ordinary course of business, a letter obtained in reply or a public document).

What is the effect of marking documents without objection; do contents stand proved; does it bar raising objection afterwards?

  • Divergent views are taken by the Courts depending on the facts of each case.
First view
(a) Proof (Contents and ‘Truth of its Contents’) stands established.  It cannot be questioned afterwards.

(b) Admission of contents – but, does not dispense with proof of truth of its contents.		(a) RVE Venkatachala Gounder v. Arulmigu Viswesaraswami: AIR 2003  SC  4548; Narbada Devi  v. Birendra Kumar: (2003) 8 SCC 745; Dayamati Bai v. K.M. Shaffi : AIR 2004 SC 4082; Oriental Insurance Co v. Premlata:  (2007) 8 SCC 575; Thimmappa Rai v. RamannaRai,(2007) 14 SCC 63; Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718.
(b) Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865; Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796 .
Second View
Even if no objection,
it does not dispense with proof (as to, both, existence of the document and its truth).
In such a case the document will not be taken as proved.

(Note: It may not be legitimate to apply this principle literatim. A close analysis of each case is essential.)		LIC v. Ram Pal Singh Bisen: 2010-4 SCC 491 (Filing of the Inquiry Report or the evidence adduced during the domestic enquiry);
H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240 (Copy of a power of attorney alone was shown to the respondent during cross-examination and he admitted his signature thereon only, and not its contents);
Mal Singhvi v. Anand Purohith: 1988 (Supp) SCC 604 (date of birth).
Third view
If truth is in issue, mere proof of contents, or marking without objection, is not proof of truth.		See: Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745; Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085.
Fourth view
Admission of contents, and
dispenses with proof and truth;
but its probative value will be a matter for appreciation by court.		See: State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684 (Admission and probative value – different); Rakesh Mohindra v. Anita Beri: 2015  AIR(SCW) 6271; Kaliya v. State of MP: 2013-10 SCC 758;  H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492;  Rasiklal Manikchand  v. MSS Food Products: 2012-2 SCC 196.
Fifth view
Admission of contents, and
dispenses with proof and truth;
but Court should require (in proper cases) the party producing the document to adduce proper evidence, and to cure formal defects, invoking –
              • Sec. 165 of Evidence Act
              • Sec. 58 of Evidence Act
              • O. XII, r. 2A Proviso, CPC and
              • Sec. 294 of the CrPC.		See: Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511;
Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740;
KK Ramachandran Master v. MV Sreyamakumar, (2010) 7 SCC 428; AIR 2015 SC 3796.

1. (a) Once no Objection to Mode of Proof, Right to Objection Stands Waived

 It is trite law that once no-objection is raised to the mode of proof on account of lack of original, then the right of the opposite party to raise objection (on this score) stands waived. RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548: (2003) 8 SCC 752, is often quoted to establish the proposition – 

It was the position of law accepted by our legal system. See:

  • Sk. Farid Hussinsab v. State of Maharashtra, 1983 CrLJ 487 (Quoted in Sonu @ Amar v. State of Haryana, AIR  2017  SC 3441; 2017-8 SCC 570)
  • Rafia Sultan Widow of Mirza Sultan Ali Baig v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 GujLH 27; 1985-2 GujLR 1315 (relied on:  P. C. Purushottamman v. S. Perumal AIR 1972 SC 608;
  • Pandappa v. Shivlingappa 47 BLR. 962; and
  • Gopaldas  v. ShriThakurli AIR 1943 PC 83).

See also:

  • Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873;
  • Sumita @ Lamta v. Devki, (Valmiki J. Mehta, J.), 25 Sep 2017 (indiakanoon);
  • Oriental Insurance Co v. Premlata:  (2007) 8 SCC 575,
  • Dayamathi Bai v. KM Shaffi, (2004) 7 SCC 107, AIR 2004 SC 4082;
  • R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple, (2003) 8 SCC 752;
  • Narbada Devi  v. Birendra Kumar: (2003) 8 SCC 745
  • Thimmappa Rai v. Ramanna Rai,(2007) 14 SCC 63.

When a document is marked without objection, our courts take two (divergent) views:

  • First, both Contents and ‘Truth of its Contents’ stand proved.
  • Second, contents alone stand proved; and, not ‘Truth’ of its Contents.

Effect of marking document without objection is laid down in the following two recent decisions of the Supreme Court. In both these cases, it is seen, the Apex Court has taken the view that the ‘truth’ is also stood proved.

The Constitution Bench in Neeraj Dutta v. State (Govt.  of N. C. T.  of Delhi), AIR 2023 SC 330; 2023 4 SCC 731, held as under:

  • “44. Section 64 of the Evidence Act states that documents must be proved by primary evidence except in certain cases mentioned above. ….. Thus, once a document has been properly admitted, the contents of the documents would stand admitted in evidence, and if no objection has been raised with regard to its mode of proof at the stage of tendering in evidence of such a document, no such objection could be allowed to be raised at any later stage of the case or in appeal vide Amarjit Singh v. State (Delhi Admn.) 1995 Cr LJ 1623 (Del) (“Amarjit Singh”). But the documents can be impeached in any other manner, though the admissibility cannot be challenged subsequently when the document is bound in evidence.”

In PC Thomas v. PM Ismail, AIR 2010 SC 905; 2009-10 SCC 239, it is observed  as under:

  • “No objection on pleas of “inadmissibility” or “mode of proof” was raised at the time of their exhibition or any time later during trial, when most of the witnesses, produced by the parties were confronted with these, as duly exhibited, bearing stamp marking with particulars, prescribed under Order XIII Rule 4 of the Code of Civil Procedure, 1908 and duly signed as such.
  • In our opinion, it is too late in the day now to object to their exhibition on the ground of “prescribed procedure” i.e. mode of proof.
  • Moreover, we also find that it was nobody’s case that the said documents were got printed by John K or distributed amongst voters by him. Absence of proof of acknowledgment by him because of non production of John K as a witness, in the circumstances, in our view, is inconsequential.
  • Admittedly, John K was a well known leader of high stature, recognized as such by Christian/Catholic voters including those mentioned in Para 17 (supra) and, therefore, there is no question of drawing an adverse inference against the election petitioner for not examining him, as strenuously urged on behalf of the appellant, particularly when the printing and circulation of offending material (Exts.P1 and P2) has been proved by the election petitioner beyond reasonable doubt.”

Objection as to Truth of Contents, First Time In Appeal – Effect

In Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 ACJ 616; 1986 Guj LH 27; 1985-2 GujLR 1315 it is observed as under:

  • “It was never the case of the Commission that report which was submitted in a sealed cover was not the genuine and true report of the committee appointed by the Commission itself. Thus in short no objection about the truth of contents of Ex. 24/1 i. e. Ex. 32 was ever put forward before the trial Court and rightly so as that was the report of its own committee of experts appointed by the Commission for enlightening itself about the causes of the accident and about the future safety steps which were required to be taken to avoid such accidents. … Not only that but the witness of the defendant accepted the contents of the said document Ex. 32. Nothing was suggested by him or even whispered to the effect that the contents of the said report were in any way untrue. …. In fact both the sides have relied upon different parts of Ex. 32 in support of their rival contentions on the aspect of negligence and contributory negligence. It is therefore too late in the day for Miss Shah for the Commission to canvass for the first time before us in appeal that contents of Ex. 32 were not proved in accordance with law and hence the document was required to be taken off the record. It is now well settled that objection about mode of proof can be waived by a party and that such objection is raised by the party at the earliest opportunity in the trial Court such objection will be deemed to have been waived and cannot be permitted to be raised for the first time in appeal (vide P. C. Purushottamman v. S. Perumal AIR 1972 SC 608; Pandappa v. Shivlingappa 47 BLR. 962; and Gopaldas and another v. Shri Thakurli, AIR 1943 PC 83 at page 87 ). In view of this settled legal position the objection raised by Miss Shah against admissibility of Ex. 32 viz. that its contents were not proved in accordance with law has to be repelled.”

(b) Document marked without objection – Contents (‘TRUTH also) proved

When a document is marked without objection, no doubt, the presumption in Sec. 114 of the Evidence Act is wide enough to presume that (i) the “contents” of the document and (ii) its ‘truth’ stand ‘proved’. Therefore, it is the duty of the other side to express its disapproval – that it does not accept the ‘contents’ and/or ‘truth’ (if it is so).

The dissent thereof can be placed by the opposite side by-

  • Raising ‘objection’ at the time of its marking, or
  • Placing the protest by way of ‘suggestion’ to the witness or by proper questions, in cross examination.

(c) TRUTH is left to Discretion (Sec. 3) & Presumption (Sec. 114) of Court

Sec. 67, Evidence Act lays down the fundamental principles as to the proof of documents. Sec. 67 reads as under:

“67. Proof of signature and handwriting of person alleged to have signed or written document produced—If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.”

Sec. 67 says as to ‘proof of signature and handwriting’ alone. Neither Sec. 67 nor any other section of the Evidence Act says about ‘proof as to truth‘ of contents of documents.

Inferences as to “TRUTH of contents

  • Evidence Act does not expressly proffer anything as to “TRUTH of contents” of documents.
  • It is left to the discretion (Sec. 3) of the court. In proper cases court can presume (Sec. 114) truth.
  • In most cases, ‘proof of execution’ leads the court to presume ‘proof of truth’.
  • It is more so, when a document is admitted (by the other side) without objection.
  • But, when proof as to ‘truth’ is in issue, or in dispute, the party in whom the burden thereof rests has to discharge it.

(d) Legal Position on ‘Waiver’ of Mode of Proof, Reprised

It appears that the legal position can be summed-up as under –

  • If a document is marked without objection, the right of objection (vested with the other side) stands waived.  And the entire contents of the document would be admissible in evidence.
  • However, if (i) there is any intrinsic infirmity to the document, or (ii) specific proof as to truth is required in the nature of the case of the parties, or it is marked through a witness who is incompetent to prove it (and the opposite party does not expressly or impliedly accepted it), the court can say – it is not ready to act upon it, for truth or correctness of contents is not established.

In Dibakar Behera v. Padmabati Behera, AIR 2008 Ori  92, it is pointed out that (in such a situation) there must be some evidence to support the contents of such document.

It is apposite to note – in RVE Venkatachala Gounder v. Arumlmigu Viswesaraswami, AIR 2003  SC  4548, the question as to ‘truth’ of contents did not specifically come for consideration. It is dealt with as under:

  • “Since documents A30 and A34 were admitted in evidence without any objection, the High Court erred in holding that these documents were inadmissible being photo copies, the originals of which were not produced.”

Photocopy of 30 Years Old OFFICIAL DOCUMENTS – Marked WITHOUT OBJECTION– REGULARITY can be Presumed

Quoting Lakhi Baruah v. Padma Kanta, it is elucidated in Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718, as regards official/public document, marked without objection, presumption under Section 114(e) of the Indian Evidence Act (there shall be a that all official acts have been regularly performed) can be invoked, over and above the presumption under Ser. 90. It is held as under:

  • “The appellants produced photocopies of all other resolutions, government orders and sale deed in favour of their vendor OA Majid Khan by the Municipality. The failure to produce the originals or certified copies of other documents was properly explained as being untraceable after the death of the brother of P.W.1 who looked after property matters. The attempt to procure certified copies from the municipality was also unsuccessful as they were informed that the original files were not traceable. The photocopies were marked as exhibits without objection. The respondents never questioned the genuineness of the same. Despite the aforesaid, and the fact that these documents were more than 30 years old, were produced from the proper custody of the appellants along with an explanation for non­production of the originals, they were rejected without any valid reason holding that there could be no presumption that documents executed by a public authority had been issued in proper exercise of statutory powers. This finding in our opinion is clearly perverse in view of Section 114(e) of the Indian Evidence Act 1872, which provides that there shall be a presumption that all official acts have been regularly performed. The onus lies on the person who disputes the same to prove otherwise.”

2. MERE MARKING, DOES NOT PROVE THE CONTENTS –  NOT AN UNQUALIFIED PROPOSITION 

This Proposition is Not to be Applied “Literatim”

It is disgraceful that several courts in India apply this proposition (Mere Marking Does Not Prove the Contents) ineptly.  

This proposition is not attracted–

  • when a document is marked on ‘admission’ by the opposite side.

This proposition is attracted–

  • when it is evident that the document is marked only for ‘identification‘, or
  • when the objection raised by the other side is sustained and the document is marked ‘subject to proof/objection’.
  • when the document is marked through an incompetent witness and not proved through a competent witness (in spite of the objection in this regard), afterwards;
  • when it has come out in cross examination of the witness through whom it is marked (by other evidence) that it is not proved ‘in accordance with law‘.

Each Case under this Head Requires Distinct Consideration

As this proposition (Mere Marking Does Not Prove the Contents) is not to be applied “literatim”, each case (which referred to this proposition) requires distinct consideration. (Some of these decisions mentioned this proposition, merely to show that such an argument was placed before it; but those decisions were quoted (subsequently) by some Courts as if those earlier decisions laid down a ‘ratio decidendi’.)

Read blog: Ratio Decidendi (alone) Forms a Precedent; Not the Final Order or Conclusion

Following are the often-cited cases on this subject.

(a) Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745

[The proposition (Mere Marking Does Not Prove the Contents) was neither attracted nor applied in this case, for – the rent receipts were taken as proved, for, it was ‘not disputed’ by the other side.]

It is held in Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745 as under:

  • “Reliance is heavily placed on behalf of the appellant on Ramji Dayawala v. Invest Import: AIR 1981 SC 2085. The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof  of its contents. Its execution has to be proved by admissible evidence, that is, by the evidence of those persons who can vouchsafe for the truth of the facts in issue”.

Narbada Devi Gupta v. Birendra Kumar Jaiswal (supra) continued as under:

  • “The plaintiff did not dispute his signatures on the back of them. There was, therefore, no further burden of proof on the defendant to lead additional evidence in proof of the writing on the rent receipts and its due execution by the deceased landlady.”

Note:

  • In this case the rent receipts were taken as proved, for, it was ‘not disputed’. [Hence the ‘legal position’ stated in Ramji Dayawala v. Invest Import (that mere production and marking of a document cannot be held to be a due proof) was not attracted in this case.]

(b) Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758

[The proposition (Mere Marking Does Not Prove the Contents) was neither attracted nor applied in this case, for – the secondary evidence of dying declaration produced in this case (with foundational evidence) was accepted by the Court]

In this case the Courts upheld the acceptance of the secondary evidence (of the dying declaration). Our Apex Court held as under-

  • “In the instant case, the Trial Court had granted permission to lead secondary evidence and the same had been adduced strictly in accordance with law and accepted by the courts below.”

It is only pointed out in this decision as under:

  • “However, the secondary evidence of an ordinary document is admissible only and only when the party desirous of admitting it has proved before the court that it was not in his possession or control of it and further, that he has done what could be done to procure the production of it. Thus, the party has to account for the non-production in one of the ways indicated in the section. The party further has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. When the party gives in evidence a certified copy/secondary evidence without proving the circumstances entitling him to give secondary evidence, the opposite party must raise an objection at the time of admission. In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage.Further, mere admission of a document in evidence does not amount to its proof. Nor, mere marking of exhibit on a document does not dispense with the proof , which is otherwise required to be done in accordance with law.
    • (Vide: The Roman Catholic Mission v. The State, AIR 1966 SC 1457;
    • Marwari Khumhar v. Bhagwanpuri Guru Ganeshpuri, AIR 2000 SC 2629;
    • RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548;
    • Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082; and
    • LIC of India  v. Rampal Singh Bisen,2010-4 SCC 491).”

(c) Ramji Dayawala v. Invest Import: AIR 1981 SC 2085

[The proposition (Mere Marking Does Not Prove the Contents) was neither attracted nor applied in this case, for – Truth of the facts in the document was “in issue”]

It is held as under:

  • “Obviously, in these circumstances the Privy Council observed that the fact that a letter and two telegrams were sent by itself would not prove the truth of the contents of the letter and, therefore, the contents of the letter bearing on the question of lack of testamentary capacity would not be substantive evidence. Undoubtedly, mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouch safe for the truth of the facts in issue.”
  • Note: The aforequoted portion itself will show that the proposition – mere proof of the handwriting would not tantamount to proof of contents – is not absolute. It is attracted to this case, because the truth of the facts was “in issue“.

(d) M. Chandra v. M. Thangamuthu, 2010-9 SCC 712

[The proposition (Mere Marking Does Not Prove the Contents) was applied in this case, for – the Validity and Genuineness of the Photocopy (of the Caste Certificate) was very much in question]

In this decision it was held:

  • “The High Court while considering this issue has noticed that the appellant failed to produce the original certificate issued by Arya Samaj, Madurai and further has not examined Santnakumar, who was supposed to have received and retained the original certificate issued by the Arya Samaj and the original records have not been summoned from Arya Samaj and no steps have been taken to summon the responsible person from Arya Samaj to prove that the appellant underwent conversion. Therefore, the claim made by her about her reconversion cannot be accepted. We do not agree with the reasoning of the High Court. It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original.”
  • Note: It was an appeal from an Election petition and the Supreme Court allowed the appeal. The validity and genuineness of the Certificate was very much in question. Therefore, the principles in RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548 (where the secondary evidence was marked without objection), was not attracted to this case (and it was not referred to also).
  • Principle of law laid down in M. Chandra v. M. Thangamuthu is followed in Rakesh Mohindra v. Anita Beri, 2016 -16 SCC 483.

(e) H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240

[The proposition (Mere Marking Does Not Prove the Contents) was applied in this case, for – the Photocopy was shown to the witness during cross-examination alone, and signature alone was admitted by the witness.]

It was held that the power of attorney was not proved in accordance with the terms of Sec. 65 of the Evidence Act, for the following –

  • The power of attorney had not been proved.
  • Original had never been filed before the Trial Court.
  • Only a photocopy of the same was shown to the respondent during cross-examination.
  • The respondent has only admitted his signature thereon.
  • He had never admitted its contents or genuineness.

It is held in H. Siddiqui v. A. Ramalingam, 2011-4 SCC 240, as under:

  • “In our humble opinion, the Trial Court could not proceed in such an unwarranted manner for the reason that the respondent had merely admitted his signature on the photocopy of the power of attorney and did not admit the contents thereof.”

It is added:

  • “More so, the court should have borne in mind that admissibility of a document or contents thereof may not necessary lead to drawing any inference unless the contents thereof have some probative value.”

(f) Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865.

[The proposition (Mere Marking Does Not Prove the Contents) was applied in this case, for – the accounts of the Plaintiff would not be proved by itself.]

It is held that the documents do not prove themselves. It is also observed in this decision as under:

  • “15. The plaintiffs wanted to rely on Exs. A-12 and A-13, the day book and the ledger respectively. The plaintiffs did not prove these books. There is no reference to these books in the judgments. The mere marking of an exhibit does not dispense with the proof of documents. It is common place to say that the negative cannot be proved. The proof of the plaintiffs’ books of account became important because the plaintiffs’ accounts were impeached and falsified by the defendants’ case of larger payments than those admitted by the plaintiffs. The irresistible inference arises that the plaintiffs’ books would not have supported the plaintiffs.” (Quoted in: Vinod Jaswantray Vyas v. State of Gujarat, 2024-7 SCR 365.)

Other Important Decisions –

  • 1. LIC v. Ram Pal Singh Bisen: 2010-4 SCC 491 (Filing of the Inquiry Report or the evidence adduced during the domestic enquiry); 
  • 2. Birad Mal Singhvi v. Anand Purohith: 1988 (Supp) SCC 604 (document on date of birth).
  • 3.  Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796 (It is observed that mere marking as exhibit and identification of executant’s signature by one of witnesses does not prove contents of a document).
  • 4. Vinod Jaswantray Vyas v. State of Gujarat, 2024-7 SCR 365 (mere marking of exhibit – letter – without the expert deposing about the opinion given therein would not  dispense with the proof of contents).

3. IF ‘TRUTH’ IS IN ISSUE – Mere Marking Not Amount to ‘Waiver’

The fundamental principles as to proof of execution a document is that the execution has to be proved by proper evidence, that is by the ‘evidence of those persons who can vouchsafe for the truth of the facts in issue’ (Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745). 

  • Note: In the facts and circumstances of each case, the court is at liberty to invoke its wisdom and fill certain gaps in evidence by applying ‘presumption’ (as shown elsewhere in this article). But it is subject to the discretion of the court – to take presumption and evaluate probative value.

If ‘TRUTH’ is in issue, or in dispute, marking a document without objection, or mere proof of handwriting or execution, by itself, need not absolve the duty to prove the truth as to the contents of the documents. Court has a duty to see that the statement of a witness gets independent corroboration, direct or circumstantial, in proper cases (Ahalya Bariha v. Chhelia Padhan, 1992 Cri.LJ 493).

In Ramji Dayawala v. Invest Import: AIR 1981 SC 2085, it was held as under:

  • “If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue.”

See also:

  • State of Bihar v. Radhaa Krishna Singh, AIR 1983 SC 684,
  • Narbada Devi Gupta v. Birendra Kumar Jaiswal, AIR 2004 SC 175,
  • Oriental Insurance Co.Ltd. v. Premlata Shukla, 2007-13 SCC 476,
  • Dharmarajan v. Valliammal, AIR 2008 SC 850,
  • Madan Mohan Singh v. Rajni Kant, AIR 2010 SC 2933,
  • Joseph John Peter Sandy v. Veronica Thomas Rajkumar, AIR 2013 SC 2028
  • Achuthan Pillai v. Marikar (Motors) Ltd., AIR 1983 Ker 81;
  • Suresh v. Tobin, 2013-1 KerLT 293.

4. Admission of Contents – May Dispense with Proof; But PROBATIVE VALUE may be Less or Nil

The discretion vested with the court to take presumption; and to evaluate probative value.

It is well settled that when a party leads secondary evidence, the Court is obliged to examine the probative value of the document and its contents, and to decide the question of admissibility of the same [Rakesh Mohindra v. Anita Beri: 2015  AIR(SCW) 6271; Kaliya v. State of MP, 2013-10 SCC 758 ].

Even when a document is technically admitted in court, the probative value thereof will always be a matter for the court to determine. That is, it is depended upon the nature of each case.

The probative value of Scene-Mahazar, Postmortem Report, Photocopy of a Registered Deed etc. without supporting legal evidence may be lesser. In such cases the court can refrain from acting upon such documents until regular evidence is tendered.

In Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758, after holding – ‘Mere admission of a document in evidence does not amount to its proof’ – it is further held as under:

  • “The court is obliged to examine the probative value of documents produced in court or their contents and decide the question of admissibility of a document in secondary evidence.”
  • [Note: Further held: “In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage.”]

In Kaliya v. State of MP: 2013-10 SCC 758 our Apex Court also referred to  H. Siddiqui v. A. Ramalingam, AIR 2011 SC 1492, and Rasiklal Manikchand  v. MSS Food Products: 2012-2 SCC 196.

In Rakesh Mohindra v. Anita Beri, 2015 AIR (SCW) 6271, as regards mere admittance of secondary evidence, it is held:

  • “Mere admission of secondary evidence, does not amount to its proof. The genuineness, correctness and existence of the document shall have to be established during the trial and the trial court shall record the reasons before relying on those secondary evidences.”

In Life Insurance Corporation of India v. Ram Pal Singh Bisen [2010-4 SCC 491], it is observed as under:

  • “26. We are of the firm opinion that mere admission of document in evidence does amount to its proof. In other words, mere marking of exhibit on a document does dispense with its proof, which is required to be done in accordance with law. …..
  • 27. It was the duty of the appellants to have proved documents Exh.-A-1 to Exh. A-10 in accordance with law. Filing of the Inquiry Report or the evidence adduced during the domestic enquiry would partake the character of admissible evidence in Court of law. That documentary evidence was also required to be proved by the appellants in accordance with the provisions of the Evidence Act, which they have failed to do.”

The Calcutta High Court [quoting Life Insurance Corporation of India v. Ram Pal Singh Bisen, 2010-4 SCC 491] it is observed in Bajaj Allianz General Insurance Company v. Smt. Santa (2019-2 ACC 36) that ‘even if the document had been marked as Exhibit-A without objection, without a formal proof thereof in accordance with the provisions of the Evidence Act, such document lost its credibility and is of no probative value’.

Best Evidence Rule and ‘Evidence of High Probative Value‘

Though various kinds of secondary evidences are provided under Sec. 63, the ‘probative value’ of one kind (say, a photograph/photostat of an original document, as stated in Illustration (a) of Sec. 63) will definitely be higher when compared with another (say, oral account). The best evidence rule insists for evidence bearing high ‘probative value’.

In State of Bihar v. Radha Krishna Singh (AIR 1983 SC 684) it is observed as under:

  • “Admissibility of a document is one thing and its probative value quite another—these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil.”

Secondary Evidence would be Admissible only in Exceptional Cases

In Kalyan Singh v. Chhoti, AIR 1990 SC 396, it had been observed as under:

  • “A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case Ex. 3 is not certified copy. It is just an ordinary copy. There is also no evidence regarding content of the original sale deed. Ex.3 cannot therefore, be considered as secondary evidence. The appellate Court has a right and duty to exclude such evidence.”

5. Court should allow to adduce proper evidence to prove documents

Besides the powers of the court under Sec. 165 of Evidence Act, the scheme of the Procedural Acts shows that the court has jurisdiction to require the party concerned to prove that document. It is evident from –

              • Sec. 58 of Evidence Act,
              • O. XII, r. 2A Proviso, CPC and
              • Sec. 294 of the CrPC.

Inasmuch as –

  • (a) mere marking of a document on admission will not amount to proof, or evidence of the contents of the document or its truth;
  • (b) the probative value of a document ‘marked without objection’ may be low or nil, for want of proper proof; and
  • (c) there may be a formal defect to the document for it is a secondary evidence and it is produced without adducing ‘foundational evidence’, 

it is legitimate to say that before taking an adverse stance as to proof in these counts, the court should give an opportunity to the party who relies on the document to cure the deficiency.

Duty of the Court to Aid Fair Trial

As shown above, the Privy Council, in Padman v. Hanwanta, 1915 (17) BomLR 609: AIR 1915 PC 111, held, as regards objection as to the admissibility of a certified copy of a will without any objection, as under:

  • “11. … Had such objection been 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.”

Defect for not producing a proper power of attorney being curable, in Haryana State Coop.  Supply and Marketing Federation Ltd. v. Jayam Textiles, 2014 AIR SC 1926 (a case under Section 138 Negotiable instruments Act), the Apex Court gave opportunity to the petitioner to produce the authorization of Board of Directors. It is observed that the in Raj Narian v. Indira Nehru Gandhi, (1972) 3 SCC 850 it was held that the rules of pleadings are intended as aids for a fair trial and for reaching a just decision. 

This principle is iterated in following cases also:

  • F.A. Sapa v. Singora, (1991) 3 SCC 375;
  • H.D. Revanna v. G. Puttaswamy Gowda, (1999) 2 SCC 217;
  • V.S. Achuthanandan v. P.J. Francis, (1999) 3 SCC 737;
  • Mahendra Pal v. Ram Dass Malanger, (2000) 1 SCC 261;
  • Virender Nath Gautam v. Satpal Singh, (2007) 3 SCC 617; (observed that facta probanda (material facts) are to be set out in the pleadings and facta probantia (particulars or evidence) need not be set out in the pleadings);
  • Sardar Harcharan Singh Brar v. Sukh Darshan Singh, (2004) 11 SCC 196
  • (held that defective verification or affidavit is curable);
  • Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511;
  • Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740;
  • KK Ramachandran Master v. MV Sreyamakumar, (2010) 7 SCC 428
  • T.C. Lakshamanan v. Vanaja, ILR 2011-3 (Ker) 228; 2011-3 KLT 347.

End Notes

1. Proof is of Two Types:

  • First, Formal Proof, or Proof as to existence of the document. The modes of proof of documents are governed under Sec. 64 to 73A of the Evd. Act.
  • Second, Substantive Proof or Proof as to truth. Besides the formal proof, in most cases (excepting a few cases where signature, hand-writing etc. alone are considered), the court acts upon a document, only when ‘truth’ of the contents of the document is established.  

2.Modes of Proof of Documents

Documents can be proved (both, ‘formal proof’ and ‘truth of the contents’) in the following ways:

  • Admission of the person who wrote or signed the document (Sec. 17, 21, 58, 67, 70).
  • Evidence of a person in whose presence the document was signed or written – ocular evidence (Sec. 59).
  • An attesting witness (Sec. 59).
  • Opinion of a person who is acquainted with the writing of the person who signed or wrote (Sec. 47).
  • Admission made by the person who signed or wrote the document made in judicial proceedings (Sec. 32, 33).
  • Evidence of a handwriting expert-opinion evidence/scientific evidence (Sec.45).
  • Evidence of a person who in routine has been receiving the document; or a document signed by such a person in the ordinary course of his business or official duty, though he may have never seen the author signing the document (Sec. 32, 34, 35 or 114).
  • Public documents – Sec. 74 – 77.
  • Invoking (specific) presumptions under Sec. 79 to 90A.
  • Presumptions (general) under Sec. 114.
  • Circumstantial evidence: on probability or inferences (Sec. 114).
  • Court-comparison (Sec. 73).
  • Facts judicially noticeable (Sec. 56 and 57).
  • A fact of common-knowledge. (It does not require proof. See: Union Of India Vs. Virendra Bharti: 2011-2 ACC 886, 2010  ACJ 2353; Rakhal Chakraborty Vs. Sanjib Kumar Roy: 1998-1 GauLR 253, 1997-2 GauLT 705)
  • Internal evidence afforded by the contents of the document; a link in a chain of correspondence; recipient of the document. (Mobarik Ali Ahmed Vs. State of Bombay, AIR 1957 SC 857)

3. Proof as to truth is to be established-

  • (i) by oral evidence of one who can vouchsafe the same or
  • (ii) by circumstantial evidence or
  • (iii) by invoking ‘presumption’ or
  • (iv) by express admission by the other side.

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