Saji Koduvath, Advocate, Kottayam.

Key Takeaways

• Oral Evidence as to Contents of a Marked Document is Irrelevant and Inadmissible.
• No Application Needed for leading Secondary Evidence, under Section 65.
• Best Available Evidence must be Produced; If Not, Adverse Presumption will be Taken.
• There is No Bar for Exhibiting Photocopy of a Sale Deed; Certified Copy cannot be Insisted citing Section 65 clause (f).
• Who Should Object FIRST – Court or Opposite Side? Two Views:
  • First view: Court is under an obligation to exclude.
  • Second view: If no objection, Court has to mark,
• Secondary-evidence, Marked Without Objection – Objection stands waived.
• Admission of Contents of a Document may Dispense With Proof – But Probative Value thereof might be Less Or Nil.

PART I

Best Evidence Rule Insists Primary Evidence

Contents of documents are to be proved by the document itself; or, its copy. Best evidence rule insists production of original (i.e., primary evidence) when it exists. 

‘Oral evidence as to the contents of a document is admissible only in rare occasions’. It is the purposive scheme of the Evidence Act – as emanated from Sections 59, 61, 62, 64, 65 and 144.

Sec. 59 of the Evidence Act reads as under:

• “59. Proof of facts by oral evidence —  All facts, except the contents of documents or electronic records, may be proved by oral evidence.”

Sec. 61 of the Evidence Act reads:

• 61. Proof of contents of documents—The contents of documents may be proved either by primary or by secondary 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.  

Sec. 65, clause (a) to (g) delineates the cases in which secondary evidence relating to documents may be given.

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.

When Document Available, Oral EVIDENCE as to its Contents Discarded

Oral evidence as to the contents of a document is admissible only in rare occasions. As observed in Shiba Sankar Nanda v. Padmini Naik, ILR 2011-1 Cut (Ori) 792, ‘it is settled principle of law that where documentary evidence is available, no amount of oral evidence against the admitted document is admissible nor can be considered by the Court’. Sections 22, 59, 61, 62, 64, 65 and 144 of the Evidence Act support this view.

Sec. 22 – If Document Available, Oral ADMISSIONS of its Author Ignored

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. 22 emphasises one thing positively – excepting the two circumstances exempted (when entitled to give secondary evidence and the genuineness of a document is in question) oral admissions on contents of a document (i.e. admission by its author or a person under him) are not relevant. In other words, even if such an evidence is tendered it will not be looked into by the court.

Sec. 22 primarily pertains to ‘admission’; and it does not deal with the ‘entitlement’ to produce a Secondary Evidence as ‘Proof’. Because, Sec. 22 is included in the sections that deal with ‘Admissions’; and it comes in Part I, Chapter II, which speaks on ‘Relevancy of Facts’; and not in Part that relates to ‘Proof’, that is Part II. It is further clear from the marginal note (or heading) of Sec. 22 (‘When oral admissions as to contents of documents are relevant’).

At the same time it must be seen that Section 22 marches in Chapter II, which speaks on ‘Relevancy of Facts’. Sec. 5 raises a total bar to irrelevant ‘evidence’. Sec. 5 of the Evidence Act reads as under:

• “Section 5: Evidence may be given of facts in issue and relevant facts:
• Evidence may be given in any suit or proceeding 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.”

Therefore, Sec. 22 bars the author and persons under him from giving oral evidence as to contents of the document, if the document is available.

Statements of Witnesses as Explanation of Admitted Document is also Excluded

As already shown, the oral statements of witnesses as regards the contents in an admitted document is irrelevant and therefore liable to be eschewed. Further, Sec. 93 and 94 speak as to exclusion of evidence (i) that intend to ‘explain or amend ambiguous document’ and (ii) that stands ‘against application of the document to existing facts’.

Will Erroneous or Misguided Oral Evidence on Contents of a Document Harm its Author?

No. Because, such evidence is ‘irrelevant’.

Words in the Instruments Matters; Not 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: VS Talwar v. Prem Chandra Sharma, AIR 1984 SC 664; Damodaram Pillai v. Dhanalakshmi Ammal, (1981) 1 MLJ 171; Thomas v. AA Henry, 2008(2) KLT 63.)

Read Blog: Oral Evidence on Contents of Document, Irrelevant

Documentary Evidence and Proof of Oral Evidence of its ‘Contents‘

In Bhima Tima Dhotre v. The Pioneer Chemical Co. (1968) 70 BomLR 683,  it is observed as under:

• “Documentary evidence becomes meaningless if the writer has to be called in every case to give oral evidence of its contents. If that were the position, it would mean that, in the ultimate analysis, all evidence must be oral and that oral evidence would virtually be the only kind of evidence recognised by law. That, however, is not the position under the Evidence Act. … Section 59 of the said Act enacts that all facts, except the “contents” of documents, may be proved by oral evidence. This provision would clearly indicate that to prove the contents of a document by means of oral evidence would be a violation of that section.”

‘Rule of Best Evidence’ – As regards Documents in the Evidence Act

Sections 22, 59, 61, 62, 64 and 144 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.

The word ‘disposition’ is not a ‘term of law’ as observed in Pushpalatha N V v.  V Padma, AIR 2010 Kant 124.  It is said as under:

• “The term ‘disposition’ has been defined in Stroud’s Judicial Dictionary as a devise ‘intended to comprehend a mode by which property can pass, whether by act of parties or by an act of the law’ and ‘includes transfer and change of property. The word ‘disposition’ means giving away or giving up by a person of something which was his own. It is not a term of law. In has no precise meaning. Its meaning has to be gathered from the context in which it is used. The word ‘disposition’ in relation to property means disposition made by deed or will and also disposition made by or under a decree of a court. The word ‘disposition’ would ordinarily be used in reference to a written document and not to the effect of that document. The removal of a thing from one’s self is involved in a disposal. The disposition is the provision creating the interest, not the interest itself. Therefore, disposition means a plan or arrangement for the disposal, distribution of something; definite settlement with regard to some matter.”

Both Sec. 91 and 92 are also based on “best evidence rule”. (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, it is held in Jahuri Sah v. Dwarka Prasad Jhunjhunwala, AIR 1967 SC 109, that 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. It is held as under:

• “This admission, however, would not render oral evidence inadmissible because it is not by virtue of a deed of adoption that a change of status of a person can be effected. A deed of adoption merely records the fact that an adoption had taken place and nothing more. Such a deed cannot be likened to a document which by its sheer force brings a transaction into existence. It is no more than a piece of evidence and the failure of a party to produce such a document in a suit does not render oral evidence in proof of adoption inadmissible.”

EXCEPTIONS to Rule of Irrelevancy of Oral Evidence under Sec. 92, Evidence Act

Sec. 92 Evidence Act reads as under:

• 92. Exclusion of evidence of oral agreement—When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms

Following are the exceptions in (the provisos of) Sec. 92 Evidence Act to the general rule as to bar of oral evidence on contents of documents:

• Provisos to Sec. 92:
  • Proviso (1). –– Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure] of consideration, or mistake in fact or law.
  • Proviso (2). ––The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document.
  • Proviso (3). ––The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.
  • Proviso (4). ––The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.
  • Proviso (5). –– Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved:
  • Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract.
  • Proviso (6). –– Any fact may be proved which shows in what manner the language of a document is related to existing facts.

PART II

Primary and Secondary Evidence

Sec. 61 of the Evidence Act directs that the contents of documents may be proved either by primary or by secondary evidence.

Sec. 62 says that Primary evidence means the document itself produced for the inspection of the Court.

Sec. 63 lays down the mode of secondary evidence permitted by the Act.  It reads as under:

• “63. Secondary evidence means and includes—
  • (1) Certified copies given under the provisions hereinafter contained;
  • (2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
  • (3) Copies made from or compared with the original;
  • (4) Counterparts of documents as against the parties who did not execute them;
  • (5) Oral accounts of the contents of a document given by some person who has himself seen it.”

Secondary Evidence of Documents Permitted in Clauses (a) to (g) of Sec. 65

As pointed out earlier, Sec. 64 of the Evidence Act stipulates that documents must be proved by primary evidence except in the cases mentioned in Sec.65.

Clauses (a) to (g) of Sec. 65 delineate the cases in which secondary evidence relating to documents may be given.

Sec. 65 reads as under:

• “65. Cases in which secondary evidence relating to documents may be given. Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:
• (a) When the original is shown or appears to be in the possession or power— of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
• (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
• (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
• (d) when the original is of such a nature as not to be easily movable;
• (e) when the original is a public document within the meaning of section 74;
• (f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence.
• (g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
• In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
• In case (b), the written admission is admissible.
• In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
• In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.

Sec. 65 clause (f) – Certified Copy is Permitted “to be Given in Evidence”

Sec. 65 clause (f) reads as under:

• “When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence”.
  • “Permitted … to be given in evidence” connotes – without “reference to” or without explaining “where the original is”.

It applies when the original is a document of which certified copy is “permitted to be given in evidence” either by Evidence Act or by any other law in force in India. See:

• Lalpratapsing Shivsahaysing v. State, 1963 CrLJ 355; 1963 GLR 448
• Hanumappa Bhimappa Koujageri v. Bhimappa Sangappa Asari, ILR 1996 Kar 1517; 1996-5 KarLJ 67
• Saudul Azeez v. District Judge, Gorakhpur, 1999 (4) AWC 3213
• Hindustan Petroleum Corporation Limited v. Badri Nath Khanna, 2015  All CJ 328; 2014-3 ARC 667; 2015-126 Rev Dec 762
• Gonepalli Rajamallaiah v. Ragipalli Rajaram, 2017-3 ALD 511; 2017-3 ALT 245
• Hari Om Gupta v. Jyoti Bhatia, 2020 8 ADJ 31; 2020 140 All LR 557; 2020 3 AWC 2930.
  • Note: There would have been no need or scope for a prob, in all these cases, if there was a comma (,) after the words “or by any other law in force in India”; or there was no comma (,) after the words “permitted by this Act”, in the original text of the Act.

Certified copy of a Regd. Sale Deed does not fall u/s. 65(f)

Section 76 of the Evidence Act provides for certified copies. Genuineness of certified copies can be presumed under Section 79 read with ‘regularity’ under Sec. 114, Evidence Act. Therefore, the certified copy of a registered sale deed shall be admissible as secondary evidence, as provided under Sec. 63.  In this regard, following questions are often raised:

Is there Total Bar for Exhibiting Photocopy of a Sale Deed (Other Than a Certified Copy) under Section 65 clause (f)? Is Certified Copy of a Sale Deed Essential?

The answer is ‘No’.

The doubt arises from or ‘in terms of‘ clauses (e) and (f) of Sec. 65.

Sec. 65 clauses (e) and (f) read as under:

• “(e) when the original is a public document within the meaning of section 74;
• (f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence.”

Sec. 65 further lays down –

• “In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.”

By virtue of the above provisions in Sec. 65, it is often debated that ‘a certified copy’ of the Sale Deed alone, and “no other kind of secondary evidence, is admissible”. It is not well-founded; because,

• (1) the copy of the deeds in the Books in the Sub Registrar’s Office is not “a public document within the meaning of section 74” – referred to in clauses (e) of Sec. 65.
• (2) the copy of the deeds in the Books in the Sub Registrar’s Office is not “a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence” – referred to in clauses (f) of Sec. 65.

No (procedural) law permits production of ‘certified copy’ of a sale deed, in the court, without saying where the original is or it is lost (i.e., without laying the foundational evidence for the non production of the original) .

Therefore, it is beyond doubt that any (admissible) kind of secondary evidence of a sale deed can be given in evidence.

• Note: In C. Assiamma v. State Bank of Mysore, 1992 -74 Com Cas 139, it is pointed out that, for the purposes of creating an equitable mortgage, the copy of a transfer-deed is not (ordinarily) a ‘document of title’, and that there may be cases where the original document is lost and there are no chances of that document being made use of for any purpose; and in such a circumstance the next best evidence of the owner’s title to the property would be a certified copy of that document.

Rule of ‘Next Best Evidence’

But, as stated above, under the Rule of Best Evidence, the law mandates production of the next best evidence, if it is not possible to produce the best evidence. Certified Copy of the sale deed obtained from the Sub Registrar’s office is the is the ‘next best evidence‘ so far as a Sale deed is concerned. Hence it may be insisted. The following decisions clearly explain the legal position:

• Balkar Singh v. State of Punjab, 2005 (1) RCR (Criminal) 576 : 2005 Cri LJ (NOC) 180 (the school record is the  next best evidence in the absence of any entry in the office of Registrar of Births and Deaths.)
• Jagdamba Tea Factory v. Parshotam Kishan, 2008-3 PunLR 388, 2008-3 RCR(CIVIL) 17,
• 2008-1 RCR(RENT) 507 (Where there is no lease deed nor any receipt, the rate of rent could well be determined on the basis of house-tax register, which is the  next best evidence available. Gurinder Singh v. Kundan Lal, 2005(1) RCR(Rent) 332 : 2005(2) CCC 128 was relied on, where entries in the municipal house tax register was considered.)
• Chiman Lal v. Datar Singh, 1998 CriLJ 267, 1997 (1) WLN 396.
• M/s. MAVR Nataraja Nadar v. State Bank of India, 1993(1) LW 456

Best Evidence Rule is Insisted on ‘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.”

Read Blog: Best Evidence Rule in Indian Law

Secondary Evidence would be Admissible only in Exceptional Cases

It is pointed out by our Apex Court in various decisions including M. Chandra v. M. Thangamuthu, (2010) 9 SCC 712, that the production of primary document is the rule; the secondary evidence would be admissible (without the ‘foundational evidence’) only in exceptional cases (Sec. 65, clauses ‘e’ and ‘f’). Primarily, to admit secondary evidence:

• (i) there should be authenticated foundational evidence that the alleged copy is in fact a true copy of the original, and
• (ii) the party concerned was genuinely unable to produce the original.

If Plea, Executant Has Not Signed And Document Forged, Need Not Adduce Evidence

In Mamndra Kumardey v. Mahendra Suklabaidya, 1999 GauLR  2219, it was observed as under:

• “As pointed out by the Apex Court in AIR 1971 SC 2548 (Dattatriya-Vs-Raj Nath) what facts and circumstances have to be established to prove the execution of a document depend on the plea put forward. If the only plea taken is that the executant has not signed the document and the document is forgery, the party seeking to prove the execution of a document need not adduce evidence to show that the party who signed the document knew the contents of the same. If there is a plea regarding contents, it may be necessary to place materials regarding contents and knowledge of the executant of the contents.” (Quoted in Akbarbhai Kesarbhai Sipai v Mohanbhai Ambabhai Patel, 2019-3 GLH 523)

If Certified Copies, How Signatures/Thumb Impression To Be Proved

Mamndra Kumardey v. Mahendra Suklabaidya, 1999 GauLR  2219, continued as under:

• “The next question is the presumption of execution under Registration Act and how far it dispenses with the proof as required under Section 67 of the Evidence Act. The Sections throwing light on this are the Sections 58, 39 and 60 of the Registration Act. Section 58 provides for particulars to be endorsed on documents admitted to registration, Section 59 provides that the endorsements are to be dated and signed by registering officer, Section 60 provides for certificate of registration. The law on this point is that presumption under Section 60(2) of the Registration Act cannot take the place of proof as required by Section 67 of the Evidence Act when witnesses are available to prove the document in the manner as laid down in Evidence Act. If that is not adhered to it may open a floodgate of fraud and a court has a duty/obligation to close it. A certified copy usually will be a weak piece of evidence and it can never take place of the original, the original has its own worth and value as a piece of evidence. Under the Registration Manual signatures/thumb impression of the executant are to be taken in a Register by the Registering Officer, in case of certified copies even that may be proved.” (Quoted in Akbarbhai Kesarbhai Sipai v Mohanbhai Ambabhai Patel, 2019-3 GLH 523)

PART III

MARKING OF DOCUMENTS LIABLE TO BE OBJECTED FOR ‘SECONDARY EVIDENCE‘

Following are improper modes (liable to objection):

• Seeking exhibition through one who cannot vouchsafe veracity.
• Objectionable (mode of) secondary evidence. Eg:
  • Certified copy produced without proving circumstances that entitles to give secondary evidence under Sec. 65 of the Evd. Act.
  • Secondary evidence other than that is recognised under Sec. 63 .
• Unstamped or insufficiently/improperly stamped document.

Documents Marked Without Objection as to its MODE OF PROOF – Effect

The law prevails in India is the following –

• If documents 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 decisions 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. Venkatchalla 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 foundation‘ and 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
PC Thomas v. PM Ismail, 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 1315	No 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.	…
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082	Objection to be taken    at     trial before document is marked as an ‘exhibit’.	Relied on: Gopal Das v. Sri Thakurji R.V.E. Venkatachala Gounder
Sarkar on Evidence .	If copies of the documents are admitted without objection in the trial Court, no objection can be taken in appeal	Referred to in: Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.

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 R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami: AIR 2003 SC  4548; Dayamathi Bai v. K.M. Shaffi : AIR 2004 SC 4082: (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.

In Chikka Narasappa v. Venkatamma, 2015-1 AIR Kar. Reports  845, ILR 2015 Kar 907, the ‘ordinary rule’ as to the time of determining questions as to the admissibility of evidence is laid down as under:

• “An objection should be taken when the evidence is tendered and not before. The proper time to object to the admissibility of evidence is when the evidence is tendered. The time for determining questions as to the admissibility of evidence is ordinarily the time when they arise i.e., when the evidence is offered, instead of admitting the evidence in the first instance and reserving the question of law as to its admissibility until the end of the trial.”

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.

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 or choice (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. (This view is generally followed in India.)

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.”

Controversy resolved

• 1. 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.
• 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.

First view: Court is under an obligation to exclude.

• Can the court throw-away a Copy strait-away, for not laying down ‘foundational facts’ for its acceptance, is an interesting question.
• Similarly, whether the copy must have been authenticated by cogent evidence, before exhibiting the same, that it is the true copy, is also an important question.

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 v. Shoba Ram:  AIR 2007 SC 1721; U. Sree  v. U. Srinivas: AIR 2013 SC 415]

Proof of Certified Copies Permitted by S. 77; Correctness Presumed by S. 79

Sec. 77 of the Evidence Act permits to produce certified copies of public documents in proof of its contents.  Sec. 77 reads as under:

• “77. Proof of documents by production of certified copies- Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.”

In Kalyan Singh v. Chhoti, AIR 1990  SC 396, our Apex Court did not act upon the ‘just an ordinary copy‘, for, there was “also no evidence regarding content of the original sale deed”. It reads as under:

• “Section 63 of the Evidence Act mentions five kinds of secondary evidences. Clause (1), (2) and (3) refer to copies of documents; clause (4) refers to counterparts of documents and clause (5) refers to oral accounts of the contents of documents. Correctness of certified copies referred to in clause (1) is presumed under Section 79; but that of other copies must be proved by proper evidence. 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.”
  • Note: It is clear that the word, “considered” is used to denote “accepted“.

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

• “12. The provisions of Section 65 of the 1872 Act provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. (Vide Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] , State of Rajasthan v. Khemraj [(2000) 9 SCC 241 : AIR 2000 SC 1759] , LIC v. Ram Pal Singh Bisen [(2010) 4 SCC 491 : (2010) 1 SCC (L&S) 1072 : (2010) 2 SCC (Civ) 191] and M. Chandra v. M. Thangamuthu [(2010) 9 SCC 712 : (2010) 3 SCC (Civ) 907])”.
• H. Siddiqui v. A. Ramalingam is followed in U. Sree  v.  U. Srinivas: AIR 2013 SC 415

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: Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718; 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] 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

Secondary Evidence – Should Non-production of Original (Invariably) be Accounted for

Two views exists.

First view: Secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law.

The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. [H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492; Nandkishore Lalbhai Mehta v. New Era Fabrics: AIR  2015  SC 3796]

In Rakesh Mohindra v. Anita Beri [2015AIR(SCW) 6271] 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.”

Second View: Doctrine of Waiver – It being a matter ‘with reference to’ admissibility of a document doctrine, of waiver applies.

Apparent Confutation Solved – The apparent confutation in this regard can be resolved taking following propositions:

• Assertive conditions in Sec. 65 as to production of secondary evidence is mandatory in nature; but not indispensable for it can be waived by the other side, it being a procedural in character.
• The court has discretion in ‘insisting‘ original or an authenticated copy; for, it can resort to:
  • (i) best evidence rule,
  • (ii) doctrine on probative value of evidence and
  • (iii) theory of judicial-conscience, justice etc.

No Application Needed for Filing or Admitting Secondary Evidence

Section 65of the Evidence Act permits secondary evidence in the circumstances or contingencies mentioned therein. The admissibility of the evidence, and the question whether the conditions for leading the secondary evidence are satisfied or not, comes for consideration only in the trial and at the time of exhibiting the document. It is no doubt clear that before adducing the secondary evidence, the party concerned has to establish that the situation stipulated in section 65 exists.

No Petition for Filing or Admitting Photocopy

Our Apex Court held in Dhanpat v. Sheo Ram, 2020 SCC Online SC 606, as under:

• “20. There is no requirement that an application is required to be filed in terms of Section 65(c) of the Evidence Act before the secondary evidence is led. A party to the lis may choose to file an application which is required to be considered by the trial court but if any party to the suit has laid foundation of leading of secondary evidence, either in the plaint or in evidence, the secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed.”

In Satyam Kumar Sah v. Narcotic Control Bureau, 2019 SCC OnLine Del 8409, it is pointed out that Section 65 does not contemplate filing of any application or seeking prior permission of the court for leading secondary evidence; and that merely because an application under Section 65, Indian Evidence Act was filed and allowed, would not ipso facto make secondary evidence admissible, which is otherwise inadmissible.

Loss of Original: It is incumbent upon the party producing the secondary evidence to prove the loss of original under Sec. 65 Clause (c).  Permission is also needed to lead secondary evidence.

In a suit for specific performance, in Hira v. Smt. Gurbachan Kaur, 1988 (2) PLR 173, photocopy of the suit agreement alone was produced. After beginning evidence it was submitted that original was lost and application was filed seeking permission to adduce copy. Besides the delay in submitting loss of original, the plaintiff did not state when and under what circumstance the original was lost. In these circumstances the High Court found that the denial of permission to lead secondary evidence, by the trial court, was justifiable. (See also: Gurditta v. Balkar Singh, 1989 (1) PLR 418; Sobha Rani v. Ravikumar– AIR 1999 P&H 21).

In Raj Kumari v. Lal Chand, 1994 (1) Civil Court Cases 477, an issue was raised as to whether the applicant was entitled to secondary evidence. Therefore, it was held that the loss of the document was not required to be proved before trial, on the application under Section 65 Evidence Act.

• Note: It appears that in a proper case, in its very peculiar facts, it may be justified in non-suiting the plaintiff, taking a preliminary issue on non-production of original, or insufficiency of grounds for non-production of original; but, it appers, it cannot be taken as a general rule.

Photocopy is a Reliable Secondary Evidence

It falls under Sec. 63(2) it being the product of ‘mechanical processes which in themselves insure the accuracy of the copy‘.

As regards Photocopy, it is laid down in Surinder Kaur v. Mehal Singh, 2014(1) R.C.R. (civil) 467 (P&H) as under:

• “a) Photostat copy of a document can be allowed to be produced only in absence of original document.
• b) When a party seeks to produce Photostat copy it has to lay the foundational facts by proving that original document existed and is lost or is in possession of opposite party who failed to produce it.
• Mere assertion of the party is not sufficient to prove these foundational facts.
• c) The objections as to non existence of such circumstances or non existence of foundational facts must be taken at earliest by the opposite party after the photostat copy is tendered in evidence.
• d) When the opposite party raises objection as to authenticity of the Photostat copy its authenticity has to be determined as every copy made from a mechanical process may not be accurate. Both the requirements of clause (2) of section 63 are to be satisfied.
• e) Allowing production of Photostat copy in evidence does not amount to its proof. Its probative value has to be proved and assessed independently. It has to be shown that it was made from original at particular place and time.
• f) In cases where the Photostat copy is itself suspicious it should not be relied upon. Unless the court is satisfied that the Photostat copy is genuine and accurate it should not be read in evidence.
• g) The accuracy of Photostat copy shall be established on oath to the satisfaction of court by the person who prepared such copy or who can speak of its accuracy.”
  • Note: It appears that the proposition, ‘accuracy shall be established on oath’, is a surplusage (for, a photocopy, by itself, ‘insures the accuracy of the copy’ under Sec. 63, and the court is free to apply the presumptions under Sec. 114).

What are the instances where Notice is not required to render Secondary Evidence 

As per Section 66, there is no need to render a notice for tendering a secondary evidence:

• “(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.”

Read Blog: Notice to Produce Documents in Civil Cases

Copy Attestation by Notary Public

In Prataprai Trumbaklal Mehta v. Jayant Nemchand Shah, AIR 1992 Bom 149, the Bombay High Court has pointed out that Rule 10(1) of the Notaries Rules, 1956 prescribed fees for certifying copies of documents as true copies of the original at the rate set forth therein; and that the ‘copy attestation’ of a document made by a notary public was also an official act. Here also, the Bombay High Court, cautioned that the notary must have properly discharged his duty by making due entry in the notary register etc. It is observed in this decision as under:

• “Notarised copies of power of attorney and other documents are filed with Banks, Courts and other public institutions. If documents are marked as true copy by the notary without taking due care and even making any entry in the notary register and without taking signature of an advocate identifying the executant or without taking other reasonable precaution, it cannot be said that the notary is discharging his duty in accordance with law as expected of him.”

Presumption as to Powers-of-Attorney

Sections 85 Sec. 114 of the Indian Evidence Act, 1872 are germane. Under Sec. 85 there is a presumption as to the authority of the Notary Public. That is, if a document contains the seal and signature of a notary public (including foreign countries like USA, UK, Canada) it is presumed to be genuine; and therefore no further evidence need be produced before the court to prove the seal and signature.

Section 85 of the Indian Evidence Act, 1872 reads as under:

• 85. Presumption as to powers-of-attorney.—The Court shall presume that every document purporting to be a power-of-attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate,  Indian Consul or Vice-Consul, or representative of the Central Government, was so executed and authenticated.

The Presumption is Presumption as to Genuineness

In Rajeshwarhwa v. Sushma Govil: AIR 1989 Delhi 144, it is held that the presumption is with respect to attestation by a ‘Competent Notary’ . It reads as under:

"When a seal of the Notary is put on the document, Sec. 57 of the Evidence Act (courts take judicial notice)comes into play and a presumption can be raised regarding the genuineness of the seal of the said Notary, meaning thereby that the said document is presumed to have been attested by a competent Notary of that country."

Further, Sec. 85 of the Indian Evidence Act provides that the Court shall presume that a power of attorney executed before a Notary Public was duly ‘executed’. The presumption drawn is the presumption as to genuineness of (i) its execution, including (ii) identification of its executant. But, it is a rebuttable presumption. In Prataprai Trumbaklal Mehta v. Jayant Nemchand Shah: AIR 1992 Bom 149, it was observed as under:

“Law takes judicial notice of seal of a notary. In ordinary course, an initial presumption may be made about genuineness of the notarised copy of the document. The underlying idea behind such presumption is that the notary is normally a responsible member of the legal profession and he is expected to take due care to satisfy himself about the identity of the party appearing before him.”

The presumption is presumption as to ‘Authentication’ also

S. 85 of the Indian Evidence Act provides that the Court shall presume that a power of attorney was duly ‘authenticated’ by the Notary Public, also. It is pointed out in Kamla Rani v. M/S. Texmaco: AIR 2007 Delhi 147, that the expression ‘shall presume’ in  Section 85  shows that the section is mandatory and that it is well settled that ‘authentication’ would mean more than mere execution.

As stated above, presumption of regularity of official acts can also be invoked and the court can come to a conclusion that the notary public was satisfied himself that the person purported himself had been executed it.

But, the certificate or endorsement of the notary public must apparently show that the notary public had satisfied himself, expressly or impliedly, about the identity of the person executed the document, though there was no prescribed form of authentication.[2] In Prataprai Trumbaklal Mehta v. Jayant Nemchand Shah: AIR 1992 Bom 149, the Bombay High Court cautioned that the notary must have properly discharged his duty by making due entry in the notary register and observing other reasonable precautions.

Read Blog: Notary-Attested Documents: Presumption, Rebuttable

Best Available Evidence must be Produced; If Not, Adverse Presumption will be Taken

It may not be safe to a party to a suit to fall-back technically on non-reception of notice under Sec. 66 Evidence Act, in the teeth of the ‘best evidence rule’.

It is the duty of the party to lead the best evidence in his possession even though onus of proof do not lie on him, and he is not called upon to produce the said evidence; and the Court will draw adverse inference under Section 114(g) of the Evidence Act if such evidence is withheld.

But this rule cannot be applied blindly. Mere non-production of documents would not result in adverse inference, invariably (as shown below). Courts take into consideration the pleadings and decide whether the document/evidence withheld has any relevance. The court also cannot lose sight of the fact that burden of proof is on the party which makes a factual averment. The conduct and diligence of the other party is also important. Existence of some other circumstances may justify non-production (Union of India v. Ibrahim Uddin, (2012) 8 SCC 148).

The rule that best available evidence must be produced is taken in the following cases:

• Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, AIR 1917 PC 6; 
• Hiralal v. Badkulal, AIR 1953 SC 225; 
• A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136; 
• The Union of India v. Mahadeolal Prabhu Dayal, AIR 1965 SC 1755; 
• Gopal Krishnaji Ketkar v. Mohamed Haji Latif, AIR 1968 SC 1413;
• M/s. Bharat Heavy Electrical Ltd. v. State of U.P.,  AIR 2003 SC 3024;
• Khatri Hotels Pvt. Ltd. v. Union of India, (2011) 9 SCC 126.

In Mohan Lal Shamlal Soni v. Union of India, AIR 1991 SC 1346, the Supreme Court held as under:

• “It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. Nonetheless if either of the parties withholds any evidence which could be produced and which, if produced, be unfavorable to the party withholding such evidence, the court can draw a presumption under illustration (g) to Section 114 of the Evidence Act.”

Invoking best evidence rule it is observed by the Supreme Court in Musauddin Ahmed v. State of Assam, (2009) 14 SCC 541, as under:

• “13. It is the duty of the party to lead the best evidence in its possession which could throw light on the issue in controversy and in case such a material evidence is withheld, the Court may draw adverse inference under Section 114 illustration (g) of the Evidence Act notwithstanding that the onus of proof did not lie on such party and it was not called upon to produce the said evidence (vide Gopal Krishnaji Ketkar v. Mohamed Haji Latif & Ors., AIR 1968 SC 1413).”

In Jitendra v. State of M.P, (2004) 10 SCC 562, our Apex Court observed that charas and ganja seized from the accused was the best evidence in that case and the non-production of the same in court was seriously taken note of by the court and observed that that mere oral evidence as to the same was insufficient.(See also: Mohd. Aman, Babu Khan v. State of Rajasthan, AIR 1997 SC 2960.)

In Tomaso Bruno v. State of U.P, (2015) 7 SCC 178, it is observed as under:

• “22. To invoke Section 106 of the Evidence Act, the main point to be established by the prosecution is that the accused persons were present in the hotel room at the relevant time. PW-1 Ram Singh-Hotel Manager stated that CCTV cameras are installed in the boundaries, near the reception, in the kitchen, in the restaurant and all three floors. Since CCTV cameras were installed in the prominent places, CCTV footage would have been best evidence to prove whether the accused remained inside the room and whether or not they have gone out. CCTV footage is a strong piece of evidence which would have indicated whether the accused remained inside the hotel and whether they were responsible for the commission of a crime. It would have also shown whether or not the accused had gone out of the hotel. CCTV footage being a crucial piece of evidence, it is for the prosecution to have produced the best evidence which is missing. Omission to produce CCTV footage, in our view, which is the best evidence, raises serious doubts about the prosecution case.”

With regard to adverse presumption the Apex Court held in Tomaso Bruno as under:

• “28. As per Section 114 (g) of the Evidence Act, if a party in possession of best evidence which will throw light in controversy withholds it, the court can draw an adverse inference against him notwithstanding that the onus of proving does not lie on him. The presumption under Section 114 (g) of the Evidence Act is only a permissible inference and not a necessary inference. Unlike presumption under Section 139 of Negotiable Instruments Act, where the court has no option but to draw statutory presumption under Section 114 of the Evidence Act.”

Non examination of the best person as a witness was also taken seriously by our Apex Court in Jagga Singh v. State of Punjab, AIR 1995 SC 135, observing that ‘the best evidence having not been brought on record’ the it would not be justified, ‘to hold that it was the appellant who had done the mischief’.

In Digamber Vaishnav v. State of Chhattisgarh, (2019) 4 SCC 522 also the Apex Court found fault for making no attempt to examine material witnesses and observed that the best evidence which would have been thrown light on the controversy in question was withheld.

Need for placing best evidence in cases of circumstantial evidence is emphasised in Rajendra Pralhadrao Wasnik v. The State of Maharashtra, AIR 2019 SC 1 also.

Marking Photocopy of 30 Years Old Official Document, without Objection – Falls u/s. 114(e)

It is held in Kalita Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718, as regards photocopies of official/public document, marked without objection, 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.”

Read Blog: 30 Years Old Documents and Presumption of Truth of Contents, under Sec. 90 Evidence Act

PART IV

EFFECT OF MARKING DOCUMENTS WITHOUT OBJECTION

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) Truth also: See: Rafia Sultan v. Oil And Natural Gas Commission, 1986 ACJ 616; 1985-2 GujLR 1315; PC Thomas v. PM Ismail, AIR 2010 SC 905. (c) 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; (b) Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1985-2 GujLR 1315: No objection about the truth of contents … before the trial Court. … It is therefore too late in the day for Miss Shah for the Commission to canvass for the first time before us in appeal. Neeraj Dutta Vs. State (Govt. of Delhi) [2023] 4 SCC 731: If no objection as to mode of proof (secondary evidence) when marked, no such objection could be allowed to be raised at any later stage. (c) 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)	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 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.

Neeraj Dutta v. State (Govt.  of N. C. T.  of Delhi)

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

• Section 61 deals with proof of contents of documents which is by either primary or by secondary evidence.
• When a document is produced as primary evidence, it will have to be proved in the manner laid down in Sections 67 to 73 of the Evidence Act.
• Mere production and marking of a document as an exhibit by the court cannot be held to be due proof of its contents. Its execution has to be proved by admissible evidence. On the other hand, when a document is produced and admitted by the opposite party and is marked as an exhibit by the court, …  (sic – no objection can be raised at any later stage with regard to proof of its contents).
• The contents of the document must be proved either by the production of the original document i.e., primary evidence or by copies of the same as per Section 65 as secondary evidence.
• So long as an original document is in existence and is available, its contents must be proved by primary evidence.
• It is only when the primary evidence is lost, in the interest of justice, the secondary evidence must be allowed.
• Primary evidence is the best evidence and it affords the greatest certainty of the fact in question.
• Thus, when a particular fact is to be established by production of documentary evidence, there is no scope for leading oral evidence.
• What is to be produced is the primary evidence i.e., document itself. It is only when the absence of the primary source has been satisfactorily explained that secondary evidence is permissible to prove the contents of documents.
• Secondary evidence, therefore, should not be accepted without a sufficient reason being given for non-production of the original.
• Once a document is admitted, the contents of that document are also admitted in evidence, though those contents may not be conclusive evidence.
• Moreover, once certain evidence is conclusive it shuts out any other evidence which would detract from the conclusiveness of that evidence.
• There is a prohibition for any other evidence to be led which may detract from the conclusiveness of that evidence and the court has no option to hold the existence of the fact otherwise when such evidence is made conclusive.

It is held further 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.”

Objection as to non examination of the author is too late in the day 

In PC Thomas v. PM Ismail, AIR 2010 SC 905; 2009-10 SCC 239, it is observed that the objection as to non examination of the author is too late in the day . It is held 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.”

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

Objection as to Truth of Contents, First Time In Appeal – Effect – Too late in the day

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.”

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.

(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 will 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.

The following decisions also lay down the proposition that ‘mere marking of a document’ as an ‘exhibit’ may amount to proof of contents, but not its ‘truth’.

• Rakesh Mohindra v. Anita Beri, 2015 AIR(SCW) 6271.
• Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758;
• Sait Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865;
• Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796 (“Mere identifying the signature of Mr. Pathak (by a witness) does not prove the contents of the said letter which is being relied upon by the appellant.”);

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.”

Standard of Proof in Civil Cases – Preponderance of  Probability

It is noteworthy that the standard of proof required in civil cases is different from that of criminal cases; since, civil court proceeds on a preponderance of probability, whereas criminal court insists ‘proof beyond reasonable doubt’. In Miller v. Minister of Pensions, (1947)2 All ER 372, Lord Denning, described preponderance of probability as “more probable than not”. It is said in picturesque as ‘likelihood of 51%’.

Secondary Evidence – Marked Without Objection – Objection stands waived.

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 his objection (if so) at the time of admission of such documents. In case, an objection is not raised at that point of time, it is precluded from raising it at a belated stage. It stands waived. [Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718; Kaliya v. State of MP: 2013-10 SCC 758]

Marked Without Objection – Do its ‘contents’ stand proved, as admission?

Divergent views exist.

(a) Proof of execution may be enough – Its ‘Contents’ stand proved: Exhibiting of documents in evidence without objection amounts to ‘admission’ of its contents. Admission is taken in law as an important characteristic. In this premises, proof of execution may be enough; and no separate proof be needed. 

When a document is marked without objection, its ‘contents’ stand proved. See: RVE Venkatachala Gounder v. Arulmigu Viswesaraswami: AIR 2003  SC  4548. See also:

• 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. Ramanna Rai,(2007) 14 SCC 63.

(b) Proof of execution may not be enough: Exhibiting of documents in evidence, without objection, and proving the same before the court are two different process. In certain cases, as comes out from Sec. 56, 57 and 58 of the Evidence Act, when a document is admitted, separate proof need not be warranted. Separate proof may not be required when presumptions can be invoked (e.g. document in ordinary course of business, a letter obtained in reply).

Factual Foundation to give Secondary Evidence must have been Established. The party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. In Rakesh Mohindra v. Anita Beri: 2015AIR(SCW) 6271, it is held as under:

• “It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence. At the same time, the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. It is equally well settled that neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispense with its proof, which is otherwise required to be done in accordance with law.” (M. Chandra v. M. Thangamuthu, (2010) 9 SCC 712, relied on)

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

Following are the often-cited cases on this subject.

The Proposition -Mere Marking Does Not Prove the Contents  – was NOT applied in the following decisions. 

Decision	Did the Documents Mark without Proper Proof  was accepted in evidence?	Reason for NOT Appling the Proposition Mere Marking Does Not Prove the Contents
Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745	Yes. 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 758	Yes. 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)

The Proposition -Mere Marking Does Not Prove the Contents  – was  applied in the following decisions; but, not unreservedly.

Decision	Did the proposition – Mere Marking Does Not Prove the Contents – unreservedly apply?	Reason for NOT applying the Proposition Mere Marking Does Not Prove  Contents, unreservedly
Ramji Dayawala v. Invest Import: AIR 1981 SC 2085	No. Truth of contents of a letter and 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
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 1865	No. Accounts of the Plaintiff was not received as proof (though marked)	The accounts of the Plaintiff would not be proved by itself

Read Blog: Proof of Documents & Objections To Admissibility – How & When?

Admission of Contents – May Dispense With Proof; But Probative Value may be Less Or Nil

Admissibility & probative value – two matters. In State of Bihar v. Radha Krishna Singh (AIR 1983 SC 684) it is observed:

• “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.”

Court Examines Probative Value of Secondary Evidence: It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence [Rakesh Mohindra v. Anita Beri: 2015  AIR(SCW) 6271].

Contents of the document cannot be proved by mere filing the document in a court. Under the Law of Evidence, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. Mere marking a document as an ‘exhibit’ will not absolve the duty of to prove the documents in accordance with the provisions of the Evidence Act. At the most, marking ‘exhibit’may amount to proof of contents, but not its truth.

Documents which are not produced and marked as required under the Evidence Act cannot be relied upon by the Court. [See: LIC v. Ram Pal Singh Bisen: 2010-4 SCC 491 (Filing of the Inquiry 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; Birad Mal Singhvi v. Anand Purohitb: 1988 (Supp) SCC 604 (date of birth)]

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 MP: 2013-10 SCC 758 (relying on  H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492, and Rasiklal Manikchand  v. MSS Food Products: 2012-2 SCC 196) 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 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 though ‘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’.

Court’s Jurisdiction to Require to Prove an Admitted Document

In any case, besides the powers of the court under Sec. 165 of Evidence Act, the scheme of the Procedural Acts (Evidence Act, CPC and CrPC) shows that the court has jurisdiction to require the party concerned to prove that document. We can rely on Sec. 58 of Evidence Act and Order XII, Rule 2A Proviso of the CPC and Sec. 294 of the CrPC to see the scheme of the procedural laws.

Court should allow (parties) to cure Defects Pertaining to Procedural Matters

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 reiterated in ever so many cases. They include:

• 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

Conclusion

Inasmuch as (a) mere marking of a document on admission will not (invariably), amount to proof, or evidence of the contents of the document or its truth; (b) the probative value of a document ‘marked without objection’ is low or nil, for want of proper proof; and (c) there is a formal defect to the document for it is a secondary evidence because it is produced without adducing ‘foundational evidence’, it is legitimate to say that before taking an adverse stance as to proof in this count, the court should give an opportunity to the party who relies on the document to cure the deficiency.

The legal position discernible can be summarised as under:

(i) Even when a document is technically ‘admitted’ in court, the probative value thereof will always be a matter for the court; and it is depended upon the nature of each case.

(ii) Whenever the court considers:

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

then,

before taking an adverse stance as to proof (in this count) the court should give an opportunity to the party who relies on the document, to cure the deficiency.

Similar Articles:

• Admitted Documents – Can the Court Refrain from Marking, for no Formal Proof?
• Production, Admissibility & Proof Of Documents
• Relevancy, Admissibility and Proof of Documents
• Admission of Documents in Evidence on ‘Admission’
• Effect of Marking Documents Without Objection – Do Contents Stand Proved?
• Marking Documents: Should Objection be Raised Strictly When they are Marked; Is it Sufficient to Challenge them during Cross-Examination?
• Oral Evidence on Contents of Document, Irrelevant
• Proof of Documents & Objections To Admissibility – How & When?
• Presumptions on Documents and Truth of Contents
• Presumptions on Registered Documents & Truth of Contents
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Does Registration of a Document give Notice to the Whole World?
• Modes of Proof of Documents
• Secondary Evidence of Documents & Objections to Admissibility – How & When?
• 30 Years Old Documents and Presumption of Truth of Contents, under Sec. 90 Evidence Act
• Unstamped & Unregistered Documents and Collateral Purpose
• Marking Documents Without Objection – Do Contents Proved
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)
• Sec. 35 Evidence Act: Presumption of Truth and Probative Value
• Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act
• Proof of Documents – Admission, Expert Evidence, Presumption etc.

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Read in this Cluster  (Click on the topic):

Book No, 1 – Civil Procedure Code

• Civil Rights and Jurisdiction of Civil Courts
• Res Judicata and Constructive Res Judicata
• Order II, Rule 2 CPC – Not to Vex Defendants Twice
• Pleadings Should be Specific; Why?
• PLEADINGS IN ELECTION MATTERS
• Law on Summons to Defendants and Witnesses
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Sec. 91 CPC and Suits Against Wrongful Acts
• Remedies Under Sec. 92 CPC
• Mandatory Injunction – Law and Principles
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Interrogatories: When Court Allows, When Rejects?
• Decree in OI R8 CPC-Suit & Eo-Nomine Parties
• Pecuniary & Subject-Matter Jurisdiction of Civil Courts
• Transfer of Property with Conditions & Contingent Interests
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Doctrine of Substantial Representation in a Suit by or against an Association
• Who are Necessary Parties, Proper Parties and Pro Forma Parties in Suits
• What is Partnership, in Law? How to Sue a Firm?
• ‘Legal Representatives’, Not ‘Legal Heirs’ to be Impleaded on Death of Plaintiff/Defendant
• Powers and Duties of Commissioners to Make Local Investigations, Under CPC

Power of attorney

• No Adjudication If Power of Attorney is Sufficiently Stamped
• Notary Attested Power-of-Attorney Sufficient for Registration
• Permission when a Power of Attorney Holder Files Suit

Title, ownership and Possession

• Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?
• POSSESSION is a Substantive Right in Indian Law
• Adverse Possession: An Evolving Concept
• Adverse Possession: Burden to Plead Sabotaged
• When ‘Possession Follows Title’; ‘Title Follows Possession’?
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
• Preemption is a Very Weak Right; For, Property Right is a Constitutional & Human Right
• Transfer of Property with Conditions & Contingent Interests
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law

Principles and Procedure

• Will – Probate and Letters of Administration
• Best Evidence Rule in Indian Law
• Declaration and Injunction
• Pleadings Should be Specific; Why?
• Does Alternate Remedy Bar Civil Suits and Writ Petitions?
• Void, Voidable, Ab Initio Void, and Sham Transactions
• Can Courts Award Interest on Equitable Grounds?
• Natural Justice – Not an Unruly Horse
• ‘Sound-mind’ and ‘Unsound-Mind’
• Can a Party to Suit Examine Opposite Party, as of Right?
• Forfeiture of Earnest Money and Reasonable Compensation
• Doctrine of ‘Right to be Forgotten’ in Indian Law
• Who has to fix Damages in Tort and Contract?
• Admission, Relevancy and Proof
• Relevancy, Admissibility and Proof of Documents
• Proof and Truth of Documents
• Production, Admissibility & Proof Of Documents
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Marking Documents Without Objection – Do Contents Proved
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• Oral Evidence on Contents of Document, Irrelevant

Land Laws/ Transfer of Property Act

• Land Tenures, and History of Land Derivation, in Kerala
• Transfer of Property with Conditions & Contingent Interests
• Vested Remainder and Contingent Remainder
• Vested interest and Contingent Interest
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• Land Acquired Cannot be Returned – Even if it is Not Used for the Purpose Acquired
• ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Relevant provisions of Kerala Land Reforms Act in a Nutshell
• Land Tenures, and History of Land Derivation, in Kerala
• Government is the OWNER of (Leasehold) Plantation Lands in Kerala.
• Law on SUCCESSION CERTIFICATE and LEGAL HEIRSHIP CERTIFICATE

Evidence Act – General

• Expert Evidence and Appreciation of Evidence
• How to Contradict a Witness under Sec. 145, Evidence Act
• Rules on Burden of proof and Adverse Inference
• Best Evidence Rule in Indian Law
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Significance of Scientific Evidence in Judicial Process
• Polygraphy, Narco Analysis and Brain Mapping Tests
• Sec. 65B
• Sections 65A & 65B, Evidence Act and Arjun Panditrao: in Nutshell
• Sec. 65B, Evidence Act: Arjun Paditrao Criticised.
• Sec. 65B Evidence Act Simplified
• ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ u/s. 65B
• Sec. 65B,  Evidence Act: Certificate for Computer Output
• Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao Explored.
• Law on Documents
• Time Limit for Registration of Documents
• Registration of Documents Executed out of India
• Are RTI Documents Admissible in Evidence as a ‘Public Documents’?
• Oral Evidence on Contents of Document, Irrelevant
• Marking Documents Without Objection – Do Contents Stand Proved?
• Proof of Documents & Objections To Admissibility – How & When?
• Notary-Attested Documents: Presumption, Rebuttable
• Presumptions on Registered Documents & Collateral Purpose
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Presumptions on Documents and Truth of its Contents
• Proof and Truth of Documents
• No Application Needed for Filing or Admitting Copy
• Secondary Evidence of Documents & Objections to Admissibility – How & When?
• 30 Years Old Documents and Presumption of Truth of Contents, under Sec. 90 Evidence Act
• Unstamped & Unregistered Documents and Collateral Purpose
• Marking Documents Without Objection – Do Contents Proved
• Production, Admissibility & Proof Of Documents
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)
• Relevancy, Admissibility and Proof of Documents
• No Adjudication Needed If Power of Attorney is Sufficiently Stamped
• Can an Unregistered Sale Agreement be Used for Specific Performance

Contract Act

• ‘Sound-mind’ and ‘Unsound-Mind’ in Indian Civil Laws
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?
• Can an Unregistered Sale Agreement be Used for Specific Performance

Easement

• What is Easement?
• Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
• What is “period ending within two years next before the institution of the suit”?
• Is the Basis of Every Easement, Theoretically, a Grant
• Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant
• Can an Easement-Way be Altered by the Owner of the Land?
• Village Pathways and Right to Bury are not Easements.
• Custom & Customary Easements in Indian Law
• ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition

Stamp Act

• Adjudication as to Proper Stamp under Stamp Act
• Unstamped & Unregistered Documents and Collateral Purpose

Will

• Interpretation of Inconsistent Clauses in a Will
• Will – Probate and Letters of Administration
• Executors of Will – Duties & their Removal

Book No. 2: A Handbook on Constitutional Issues

• Judicial & Legislative Activism in India: Principles and Instances
• Can Legislature Overpower Court Decisions by an Enactment?
• Separation of Powers: Who Wins the Race – Legislature or Judiciary?
• Kesavananda Bharati Case: Never Ending Controversy
• Mullaperiyar Dam: Disputes and Adjudication of Legal Issues
• Article 370: Is There Little Chance for Supreme Court Interference
• Maratha Backward Community Reservation: SC Fixed Limit at 50%.
• Polygraphy, Narco Analysis and Brain Mapping Tests
• CAA Challenge: Divergent Views
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Doctrine of ‘Right to be Forgotten’ in Indian Law
• Religious issues
• Secularism and Art. 25 & 26 of the Indian Constitution
• Secularism & Freedom of Religion in Indian Panorama
• ‘Ban on Muslim Women to Enter Mosques, Unconstitutional’
• No Reservation to Muslim and Christian SCs/STs (Dalits) Why?
• Parsi Women – Excommunication for Marrying Outside
• Knanaya Endogamy & Constitution of India
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
• Ayodhya Disputes: M. Siddiq case –Pragmatic Verdict

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

• General
  • General Features
  • Bye Laws Fundamental
  • Effect of Registration of Societies and Incorporation of Clubs
  • Societies and Branches
• Property & Trust
  • Vesting of Property in Societies and Clubs
  • Incidents of Trust in Clubs and Societies
• Juristic Personality
  • Juristic Personality of Societies and Clubs
  • Legal Personality of Trustees and Office Bearers
• Suits
  • Suits and Criminal Complaints By and Against a Company
  • Suits By or Against Societies, Clubs
  • Court’s Jurisdiction to Interfere in the Internal Affairs
  • How to Sue Societies, Clubs and Companies
• Amendment and Dissolution
  • Amendment of Bye laws of Societies and Clubs
  • Dissolution of Societies and Clubs
• Rights and Management
  • Rights & Liabilities of Members of Clubs and Societies
  • Individual Membership Rights in Societies & Clubs
  • Management – Powers of General Body and Governing Body
  • Expulsion of Members & Removal of Office-Bearers
  • Law on Meetings: An Overview
• Election
  • Election & Challenge in Societies and Clubs
  • Court Interference in Election Process
• State Actions
  • State-Interference in Affairs of Societies & Clubs

Book No. 4: Common Law of TRUSTS in India

• General Principles
  • What is Trust in Law?
  • Classification of Trusts
  • Public & Private Trusts in India.
  • Trust is ‘An Obligation’; Not a Legal Entity
  • Indian Law Does Not Accept Salmond, as to Dual Ownership
• Dedication and Vesting
  • Dedication of Property in Public Trusts
  • Vesting of Property in Trusts
  • Incidents of Trust in Clubs and Societies
• Trustees and Management
  • Trustees and Administration of Public Trusts
  • Alienation of Public Trust Property
  • Extinction, Discharge, Revocation, etc. of Public Trusts
• Breach of Trust
  • Breach of Trust and Removal of Trustees
• Suits by or against Trusts
  • Suits By or Against Trusts and Trustees
  • Remedies Under Sec. 92 CPC
• Law on Hindu Religious Endowments
  • Philosophy of Idol Worship
  • Is an Idol a Perpetual Minor?
  • Hindu Temples & Law of Trusts
  • Public & Private Trusts
  • Law of Mutts and Other Hindu Endowments
  • Shebaits & Mahants and Law of Trustees
• Temples, Gurudwaras, Churches and Mosques – General
  • Legal Personality of Temples, Gurudwaras, Churches and Mosques
• Constitutional Principles
  • Secularism and Art. 25 & 26 of the Indian Constitution
  • Secularism & Freedom of Religion in Indian Panorama
  • ‘Muslim Women: Ban to Enter Mosques, Is it Unconstitutional
  • Parsi Women Excommunication, Unconstitutional.
  • Knanaya Endogamy & Constitution of India
  • State & Court – Protectors of All Charities
• Ayodhya and Sabarimala Disputes
  • Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
  • Sabarimala Review Petitions & Reference to 9-Judge Bench
  • SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
• General
  • Public Trusts and (State) Endowments/Trusts Acts
  • Public Trusts and Indian Trusts Act – An Overview
  • Business by Charitable Trusts & Institutions