Marking Documents: Should Objection be Raised Strictly When they are Marked; Is it Sufficient to Challenge them during Cross-Examination?

Taken from the Blog: Proof of Documents & Objections To Admissibility – How & When?

Saji Koduvath, Advocate, Kottayam.

Answer in a Nutshell

  • Objection need not be raised strictly when the documents are marked; it can be by a challenge during cross-examination.

It is true, some decisions say – objection to marking a document should be raised at the time the document is sought to be marked; and it cannot be deferred to cross-examination. However, this is not entirely correct in principle, as clarified by the Supreme Court in RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548, where it is laid down as under:

  • “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. …. 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….
  • Privy Council in Padman and Others vs. Hanwanta and Others [AIR 1915 PC 111] did not permit the appellant to take objection to the admissibility of a registered copy of a will in appeal for the first time.”

Admissibility of Documents – Inquisitions

When should the admissibility of a document be challenged?

  • Should it be insisted – objection must be placed at the very moment the document is exhibited?
  • Or, will it suffice to question the marking during the cross-examination of the witness (through whom it is marked)?

Objection as to Documents ‘INADMISSIBLE IN ITSELF‘ and ‘MODE OF PROOF’

In the classic  and authoritative, widely accepted decision in this subject, RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548, it is held by our Apex Court that the objections as to admissibility of documents in evidence can 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.”

The Apex Court held that 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 Dayamathi Bai v. K. M. Shaffi, AIR 2004 SC 4082; 2004-7 SCC 107, it is reiterated in the following words:

  • “13. We do not find merit in this civil appeal. 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). This aspect has been brought out succinctly in the judgment of this Court in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple & Another reported in [(2003) 8 SCC 752] to which one of us, Bhan, J., was a party…”

Documents ‘INADMISSIBLE IN ITSELF‘: Examples

  • Computer output (secondary evidence) without Sec. 65B (Sec. 63) Certificate.
  • Photo copy of a certified copy of a recent registered sale deed without laying foundation).

This proposition in RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548, Dayamathi Bai v. K. M. Shaffi, AIR 2004 SC 4082; 2004-7 SCC 107, is referred to in the following decisions-

  • 1. Z.  Engineers Construction Pvt.  Ltd.  v. Bipin Bihari Behera, AIR 2020 SC 1140; 2020-4 SCC 358,
  • 2. Sonu @ Amar Vs State Of Haryana, AIR 2017 SC 3441; 2017-8 SCC 570,
  • 3. State of Karnataka v. Selvi J.  Jayalalitha, 2017-6 SCC 263,
  • 4. Nandkishore Lalbhai Mehta v. New Era Fabrics Pvt.  Ltd. , AIR 2015 SC 3796; 2015-9 SCC 755,
  • 5. Shalimar Chemical Works Ltd.  v.  Surendra Oil & Dal Mills (Refineries), 2010-8 SCC 423,
  • 6. Malay Kumar Ganguly v. Sukumar Mukherjee, AIR 2010 SC 1162; 2009-9 SCC 221.

Positive Propositions that Support ‘Sufficiency during Cross Exam.‘

Whether the challenge in cross examination can be entertained after marking a document without protest is a potential question in our legal sphere. Our Procedural Codes do not specifically speak about the time for raising objections in this regard. The following propositions support allowing cross-examination (even if a document is marked without objection).

  • 1. Sec. 3 of the Evidence Act stipulates that ‘proof’ shall be evaluated by the court “after considering the matters before it“. Sec. 3 defines ‘Proved’ as under:  
    • “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.”
  • 2. A document is proved – or disproved – only when the Court is called upon to apply its judicial mind to the document with reference to Section 3 of the Evidence Act (Dalgreen Agro Pvt Ltd v. Shaikh Asadur Rahman, 2020 AIR (Cal) 108). Usually it takes place only in Final Hearing of a case (Sudhir Engineering Co. v. NITCO Roadways Ltd., 1995 (34) DRLJ 86).
  • 3. Documents are marked through witnesses, during “Chief Examination”; while the other party has the right of Cross Examination.
  • 4. Cross-examination is a powerful and valuable legal weapon, by which truth may be elicited out.
  • See:
    • Mechanical etc. Inventions v. Austin, 1935 A.C. 346;
    • Padakalingam v. Yesudasan, 1953 KLT 587;
    • Velu Pillai v. Paramanandam, AIR 1954 Trav.-Co. 152;
    • Mt.  Basanti v. Pholo, AIR 1955  HP  37;
    • Kansi Ram v. Jai Ram, AIR 1956 HP 4;
    • Rachpal Singh v. Gurmit Kaur, AIR 2009 SC 2448; 2009-15 SCC 88.
    • Sharda v. State of Rajasthan, AIR  2010 SC 408; 2010-2 SCC 85;
    • State of Rajasthan v. Shravan Ram, AIR 2013 SC 1890; 2013-12 SCC 255
    • Anil Bajaj v. Vinod Ahuja, AIR 2014 SC 2294; 2014-15 SCC 610;
  • 5. The principle of timely objection is propounded with a view to avoid surprise to the other side.
  • 6. The only reason that can be set-forth to exclude cross-examination is legal “injury” or “prejudice” that may be caused to the party that produced the document (though possibility thereon is little). Conversely, the legal “injury” or “prejudice” resulting from the refusal of such cross examination testimony, to the other party, will be more serious.
  • 7. It is pointed out – objections to marking documents cannot be raised in appeal, for the first time; if such objection was raised in trial court, the concerned party could have cured the deficiency. (RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548: (2003) 8 SCC 752; Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873: (2022) 13 SCC 746).

March of Law on this Matter

 1. Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158 (earlier view).

It was observed by the Supreme Court 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 RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548: (2003) 8 SCC 752; Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082; (2004) 7  SCC 107, took a contra view.

2. RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548 (obviously, primary aim was to overcome Bipin Shantilal Panchal v. State of Gujarat).

It was held that the objection as to ‘mode of proof’ (contra-distinct to inadmissible in itself) 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.

  • “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. …. 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….
  • Privy Council in Padman and Others vs. Hanwanta and Others [AIR 1915 PC 111] did not permit the appellant to take objection to the admissibility of a registered copy of a will in appeal for the first time. …
  • Similar is the view expressed by this Court in P.C. Purushothama Reddiar vs. S. Perumal [1972-2 SCR 646]. …”

3. Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873: (2022) 13 SCC 746.

In this decision it is held as under:

  • “24. In view of the foregoing discussion, it is clear that plea regarding mode of proof cannot be permitted to be taken at the appellate stage for the first time, if not raised before the trial Court at the appropriate stage. This is to avoid prejudice to the party who produced the certified copy of an original document without protest by the other side. If such objection was raised before trial court, then the concerned party could have cured the mode of proof by summoning the original copy of document. But such opportunity may not be available or possible at a later stage. Therefore, allowing such objection to be raised during the appellate stage would put the party (who placed certified copy on record instead of original copy) in a jeopardy & would seriously prejudice interests of that party. It will also be inconsistent with the rule of fair play as propounded by Justice Ashok Bhan in the case of RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548.”
  • Note: It is held – the objection must have been raised (in the ‘trial court’) at the “appropriate stage“: that is, (i) while marking the document or (ii) during cross-examination of the witness through whom it is marked or (iii) by a written document.

Admissibility, Reliability of Documents be Considered at Hearing

In K. Mallesh v. K. Narender, 2015-12 Scale 341; 2016-1 SCC 670 (Anil R. Dave, Adarsh Kumar Goel, JJ.) allowed an appeal setting aside the order passed in an interlocutory stage, during the pendency of a suit, holding as under:

  • “2. In our opinion the High Court should not have interfered at the stage when the trial was still in progress. Therefore, we set aside the impugned order passed by the High Court without going into the merits of the case. We say that the admissibility, reliabiity and registrability of the documents shall be considered independently only at the time of hearing of the trial and not prior thereto. All questions with regard to the aforesaid issues shall remain open.

Judicial Reflections on the ‘Challenge’ by Cross-Examination

The law on the point (whether a challenge in cross-examination, sufficient) can be deduced from the following decisions-

(i) In Thakor Rajuji Takhaji v. Owner of Tractor No.  RJ-21-3R-8180, Kawarilal, 2024  Guj HC 14451), it is held as under:

  • “The cross examination of the respondent/s does not suggest that they had any objection to the documents produced.”

(ii) Khan v. Habib Khan @ Abdul Mujeeb Khan, 11 Mar 2020 (Del), where it is observed –

  • “5. Learned counsel appearing for the respondents submits that the original documents were duly produced before the Trial Court at the time of the recording of the evidence of the respondent and the copies of the said documents, after comparison, were exhibited and marked as Exhibit PW1/6 to PW1/8 and no objection was taken by the petitioner with regard to the proof of the said documents and exhibit marking of the copies and there is even no cross-examination or suggestion during cross examination that the originals have not been produced.”

(iii) In Corporation of Calcutta v. Baldeo Shaw, 2011-3 Crimes (HC) 784; 2011-2 CalLJ 221;  2011-1 CriLR 890, it is held as under:

  •  “The cash memo, i.e., Exhibit-A was admitted into evidence and marked Exhibit. No objection was raised by the complainant in course of cross-examination in the matter of admission of such a document.”

(iv) In Kuntal Kundu v. National Insurance Company Limited, 2008-3 WBLR 717), it is held as under:

  • “In the case before us, the appellant in his evidence-in-chief specifically tendered the said certificate and the same along with others was marked as Exhibit without objection. We have already pointed out that even no suggestion was given in cross-examination disputing either the contents or the genuineness of those documents.

(v) In Noorjahan, Altaf Ahmed v. Sadrunisa, Hajifatehulla Khan, 2005-3 BomLR 625; 2005-3 MhLJ 10,  it is pointed out as under:

  • “It is further pertinent to note that there was no effective cross-examination in respect of this document. There was no objection taken to the document being received and marked in evidence either.”

(vi) In Alacs Finanz Ltd v. Oksh Technologies, AIR 2005  (Del) 376, it is held as under:

  • “When the certified copy of the Resolution was tendered in evidence, no objection to its admission or mode of proof was raised. Not even in the cross-examination.”

(vii) In R.  Vijayabalan v. D. Jayakumari, 2001-1 MLJ 555, it is observed as under:

  • “… when those documents were marked, there was no objection raised for marking the documents and even in the cross-examination there was no challenge made with reference to those documents marked before the court and since the said act would amount to waiver…”.

(viii) In Lionel Edwards Ltd. v. State of West Bengal, AIR 1967 Cal-191, it is held as under:

  • “Documents are either proved by witnesses or marked on admission. When it is marked on admission without reservation, the contents are not only evidence but are taken as admitted, the result being the contents cannot be challenged either by way of cross-examination or otherwise. In respect of documents marked on admission dispensing with formal proof, the contents are evidence, although the party admitting does not thereby accept the truth of the contents and is free to challenge the contents by way of cross-examination or otherwise.” (Quoted in: Life Insurance Corporation of India v. Manjula Mohanlal Joshi, AIR 1975 Ori 116; ILR 1975 Cut 422).

Earlier (Contra) View on Objection on Insufficiency of Stamp Duty

(i) In Jatti Veera Venkata Satyam v. Bosukonda Chinnadevi, 2023-3 ALT 345, it is held as under:

  • “20. In the present case, the agreement of sale which requires stamp duty under Article 47-A is executed on a deficit stamped paper, i.e., of Rs.100/- only, yet, the same was marked without raising any such objection. It is only during the cross-examination of PW1, such an objection was raised by the defendants. In view of the express prohibition made under Section 36 of the Stamp Act, no such objection can be raised on the ground of insufficiency of stamp duty.”

(ii) Srinivasa Builders v. A. Janga Reddy, 2016-3 ALD 343; 2016-2 ALT 321, it is seen that the court accepted the following argument-

  • “With respect to the agreement of sale executed on Rs.50/- stamp paper, the Court imposed stamp duty and penalty, the amount was already remitted and in view of the same, the said document was marked as exhibit without any objection from the defendants. Therefore, the defendants cannot raise objection at the stage of cross-examination.”

Present View on Insufficiency of Stamp Duty

In G. M. Shahul Hameed v. Jayanthi R. Hegde, AIR 2024 SC 3339, it is held that the key point regarding the marking of a deficiently-stamped document is not the “objection from the opposite party,” but rather the “judicial determination,” regardless of whether an objection had been made or not.

Irrelevant And Inadmissible Evidence 

In Jainab Bibi Saheb v. Hyderally Saheb, (1920) 38 MLJ 532, it was determined that the failure of an advocate to raise objections to the admission of irrelevant and inadmissible evidence, or the tribunal’s own failure in excluding such evidence, does not confer validity upon a decree if the Evidence Act declares the evidence as irrelevant.

A document not admissible in evidence, though brought on record, has to be excluded from consideration. (Roman Catholic Mission v. State of Madras, AIR 1966 SC 1457; Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082).

Effect of marking documents with ‘Consent‘

When a document is marked as an exhibit with the ‘consent’ of the opposing party, its admissibility remains unassailable at all subsequent stages of the proceedings. If the truth of contents of a document is disputed (and truth cannot be presumed under Ser. 114 Evidence Act), just marking the document, even with the (formal) consent of the opposite side, does not prove ‘truth’ of its contents. See:

  • Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745;
  • Pramod E. K. v. Louna V. C., AIR 2019 Ker  85; V.S. Perumal v. Vadivelu Asari, 1986 MLJ 283.

However, the party against whom the document is presented can admit truth of the contents also.

Document Marked in Proof Affidavit & Marked for Identification

In Dalgreen Agro Pvt Ltd v. Shaikh Asadur Rahman, 2020 AIR (Cal) 108, the court considered the significance of a document being marked as an exhibit (in Proof Affidavit), and held as under:

  • “Order XIII Rule 4 of the CPC provides for appropriate endorsements on the documents which have been admitted as evidence in a suit. Under Order XIII Rule 7, every document which has been admitted in evidence shall form part of the record of the suit. These provisions would show that marking a document as an exhibit is only for the purpose of identification and has no bearing with proof of the document. Hence, admission of documents as exhibits is not equivalent to the documents being proved and does not bind the parties. A document is proved – or disproved – only when the Court is called upon to apply its judicial mind to the document with reference to section 3 of the Evidence Act. This would also be in line with Lionel Edwards (Lionel Edwards Ltd. v. State of West Bengal, AIR 1967 Cal 191) where the .. Court held that a party does not lose its right to cross examination in respect of documents whose contents are disputed. In the present case therefore, the defendants will not be deprived of their right to cross-examine the plaintiff’s witness on the documents disclosed in the affidavit of evidence and which are proposed to be marked as exhibits. On the other hand, if the plaintiff is called upon to lead oral evidence on these documents by way of an examination in chief, the amendments introduced by the Commercial Courts Act to Order XI Rule 4 to expedite and streamline the hearing of commercial suits will be reduced to a pointless insertion.”

Document to be Proved by Competent Witness; Otherwise, Inadmissible

Correctness of a Plan Cannot be proved thorough one who has (only) seen making it

In Reg v. Jora Hasji, 11 Bom HCR 242, a plan of certain fields was prepared before the chief constable.  It was sought to be proved by the chief constable. The person who prepared the plan was not called. That plan had been admitted in evidence, and the appeal Court observed as under:

  • “…. A plan of fields which the Chief Constable says, he saw made before him, is admitted. To say that it was prepared in his presence and bears his signature is not a sufficient reason for admitting the plan. The witness did not depose that to his knowledge the plan was a correct one, and if he could not say this, the person who made the measurements and prepared the plan should himself have been called….. but we mention the matter in order that our opinion regarding its non-admissibility in evidence may be known.” (Quoted in: Madholal Sindhu v. Asian Assurance Co.  Ltd., AIR 1954 Bom 305; Mohan Sons v. Lady Sonoo Jamsetji Jejeebhoy, AIR 1976 Bom 417)

Similarly, the mere marking of a document (even without objections) will not establish its ‘proof’ if-

  • (i) it is a certificate issued by an expert (Subhash Maruti Avasare v. State Of Maharashtra, 2006-10 SCC 631, SB Sinha, J.)
  • (ii) it is an enquiry Report or the evidence adduced during the domestic enquiry (M. Chandra v. M. Thangamuthu, (2010) 9 SCC 712;  Nandkishore Lalbhai Mehta v. New Era Fabrics: AIR 2015 SC 3796; Life Insurance Corporation of India v. Ram Pal Singh Bisen, 2010-4 SCC 491).

A document, like a Will, required by law to be attested, has to he “proved” in the manner contemplated by Section 68 of the Evidence Act, by examining at least one witness. Mere marking, without objection, does not dispense with the legally required proof.

Conclusion

An authoritative judicial pronouncement has yet to come concerning the following essential and fundamental issues:

  • 1. How it can be understood whether a document is marked solely for identification purposes, which does not require an objection at the time of its marking?
  • 2. Is there any deadline for placing objections to the documents?
  • 3. What are the methods legally available for placing the objections to the admissibility of documents? Is it permissible to record all and whatsoever objections pertaining to(both) genuineness of a marked document and the truth of its contents, through the process of cross-examination?

It appears that the legal position as of now stands as follows:

  • The objections to the admissibility of documents have to be raised while the documents are marked as exhibits.
  • However, it does not preclude the right of a party to place on record all and whatsoever objections to the (exhibited) documents by way of ‘cross examination’ of the witness through whom it is marked. It is for the reason that the cross examination is a right guaranteed by the law to elicit truth; and court applies its judicial mind to the document only in Final Hearing. This stance is also supported by the following judicial reasoning –
  • “If such objection was raised before trial court, then the concerned party could have cured the mode of proof by summoning the original copy of document.” (Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873: (2022) 13 SCC 746).

Tailpiece

It goes without saying that the pedantic approach—namely, failure to raise objection to the admissibility of a document at the moment it was marked, renders subsequent cross-examination ineffective—will adorn only hyper-technical judges.

End Notes:

1. Mere marking– not dispense with proof (of truth of contents) 

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’.)

Accepted law on this point –

  • 1. MERE MARKING PROVE THE CONTENTS if no objection. E.g. Rent receipt executed by the opposite side; Photocopy of a document.
  • 2. MERE MARKING WILL NOT PROVE THE CONTENTS if Truth of the facts in the document was “in issue“ or validity was very much in question.

Following are the often-cited cases in this regard.

Cited to support the Proposition – MERE MARKING PROVE THE CONTENTS   

  • From the following it is clear that this proposition is not absolute and unreservedly apply.
  Decision Cited to support – MERE MARKING PROVE THE CONTENTS Were the criticised document or its copy ‘marked without proper proof‘ accepted in evidence?Reason for MARKING
Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745Yes.
The rent receipts were received in evidence. (without formal proof)		The rent receipts were ‘not disputed’ by the other side.
Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758Yes.
The secondary evidence of dying declaration produced in this case was accepted by the Court.		Secondary evidence was adduced with foundational evidence (for producing copy; not original)

Cited to support the Proposition – MERE MARKING DOES NOT PROVE THE CONTENTS

  • From the following it is clear that this proposition is not absolute and unreservedly apply.
Decision Cited to support – MERE MARKING DOES NOT PROVE THE CONTENTSDid the proposition – Mere Marking Does Not Prove the Contents –unreservedly apply?Reason for NOT MARKING
Ramji Dayawala v. Invest Import: AIR 1981 SC 2085No.
Truth of contents of (i) a letter and (ii) two telegrams were not taken. (though marked)		Truth of the facts in the document was “in issue“
M. Chandra v. M. Thangamuthu, 2010-9 SCC 712  No.
Validity and Genuineness of the Photocopy (of the Caste Certificate) was not accepted (though marked)		Validity and Genuineness of the Caste Certificate was very much in question. (The question in this Election Case was ‘Conversion of Religion‘.
H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240  No.
Contents of the Photocopy was not received as proof (though marked)		Photocopy was shown to the witness during cross-examination alone, and Signature alone was admitted by the witness.
Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865No.
Accounts of the Plaintiff was not received as proof (though marked)		The accounts of the Plaintiff would not be proved by itself

2. Xerox Copies Should Not be Marked if Objection.

In Shalimar Chemical Works Ltd.  v. Surendra Oil & Dal Mills (Refineries), 2010-8 SCC 423, our Apex Court viewed the following mistakes were “serious” –

  • “The trial court should not have “marked” as exhibits the Xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants…. rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility. …
  • The learned single judge rightly allowed the appellant’s plea for production of the original certificates of registration of trade mark as additional evidence because that was simply in the interest of justice and there was sufficient statutory basis for that under clause (b) of Order 41, Rule 27. But then the single judge seriously erred in proceeding simultaneously to allow the appeal and not giving the defendants/respondents an opportunity to lead evidence in rebuttal of the documents taken in as additional evidence.
  • The division bench was again wrong in taking the view that in the facts of the case, the production of additional evidence was not permissible under Order 41, Rule 27.”

Note: Sec. 136, Evidence Act permits to use a fact before proving it formally on “the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking”.

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