New Delhi (ABC Live): Admission of Documents In Evidence : Mahatma Gandhi ji said That There is no God higher than the truth . Introduction: Every Court of law is free to regulate its own affairs within the framework of law. There are catena of rulings of our Hon’ble Superior Courts as to receiving and marking of documents. Still, in some situations, some confusion arises while receiving and marking of documents.
There are several issues are involved while receiving and marking of documents. Whether an unregistered document can be marked or not?
Whether an unregistered document can be received for collateral purpose or
not? When the question of impounding arises ? If a document is insufficiently
stamped, what should be done? If an Vakil raises any objection while marking a document, how a judicial officer should tackle it? When should decide the question of admissibility of a document? There are several doubts usually crept in the mind of young judicial officers while admission of a document in a civil case. It is my strenuous attempt to give some important case-law on this subject for the benefit of all legal fraternity more in particular for the benefit of judicial officers who are dealing with civil cases.
It is also well-known principle of law that admission of a document in evidence is not to be confused with proof of a document. But, it is curious to note that under Order-13 Rule-4 of the Code of Civil Procedure, when once the document is admitted in evidence, there is a bar under Section -36 of the Indian Stamp Act as regards the objection of admissibility of the document. We all know that mere marking of an exhibit does not dispense with the proof of documents. Further, the question of impounding arises when it is within the meaning of instrument defined by the Stamp Act. The question of impounding by court arises when tendered in evidence to exhibit and not from mere filing with plaint. Every Court is free to regulate its own affairs within the framework of law.
Ten Fundamental principles as to receiving of documents:-
For ready reference, let me list out ten (10) important fundamental principles
with regard to receiving of documents in a suit. I will later on discuss various other aspects with support of latest case-law as to receiving, marking and admissibility, proof, relevancy, and genuineness of documents etc.
- Order VII of CPC relates to the production of documents by the plaintiff whereas Order VIII of CPC relates to production of documents by the defendant. Under Order-18 Rule-4 of the Code of Civil Procedure, examination -in-chief shall be filed in the form of an affidavit and the copies thereof shall be supplied to the opposite party. As per the proviso to Rule-4 of Order-18 of the Code of Civil Procedure, the proof and admissibility of the documents filed by the respective parties along with the affidavit shall be subject to the orders of the Court. As per Order-13 Rule-3 of the Code of Civil Procedure, the Court may at any stage of the suit, reject any document, which it considers irrelevant or otherwise inadmissible, recording the grounds for such rejection. Under Order-13 Rule-4 of the Code of Civil Procedure, when once the document is admitted in evidence, there is a bar under Section-36 of the
Indian Stamp Act as regards the objection of admissibility of the document.
- Under Order VIII Rule 1A(4) a document not produced by defendant can be confronted to the plaintiff’s witness during cross-examination. Similarly, the plaintiff can also confront the defendant’s witness with a document during cross-examination.
- By mistake, instead of ‘defendant’s witnesses’, the words ‘plaintiff’s witnesses’ have been mentioned in Order VII Rule 14 (4). The Hon’ble Apex Court has given clear direction till the legislature corrects the mistake, the words ‘plaintiff’s witnesses, would be read as ‘defendant’s witnesses’ in Order
VII Rule 4.
- Order-7 Rule-14(1) C.P.C. enjoins upon the plaintiff to file all his documents along with the plaint and that unless he puts forth convincing reasons, the Court cannot allow him to file the documents at a later stage, the same is unexceptionable.
- Similar is the provision under the sub-clause (3) of Rule 1 of Order XIII of the Code. Being so, it cannot be disputed that if the plaintiff fails to mention the documents in the list annexed to the plaint and to place on record a copy of such document, which is required to be produced under the law at the time of filing of the plaint, the plaintiff is not entitled to produce any additional document thereafter without the leave of the Court. But, at the same time, it is also to be noted that nothing prevents the Court in its discretion to grant leave subsequent to the documents being produced before the Court even though such documents were not entered in the list annexed to the plaint. It would depend upon the facts of each case.
- A document filed under Order XIII, Rule 1 as a piece of evidence in support of the claim of one of the parties to the suit filed along with the pleading may eventually be proved or may not be proved by the concerned party depending upon the issues involved in the suit .
- Order 13, Rule 1 deals with only reception of the documents by the Court as part of the record of the suit. It does not deal with reception of the document as a piece of evidence. Rule 13 deals with a stage prior to the reception of the evidence in the suit. Whereas Order 7, Rule 14 deals with different situation altogether.
- There is a clear embargo on the reception of a document in evidence, which forms the basis of the suit and filed by the plaintiff along with the plaint, but not filed. The Court of course is vested with the discretion under Sub-rule (3) of Rule 14 to receive any such document contemplated under Rule 14(1) at a belated stage by granting leave.
- There are three stages for every document before it is proved or disproved:- Any document filed by either party passes through three stages before it is held proved or disproved. These are :
- a) First stage :-when the documents are filed by either party in the Court; these documents though on file, do not become part of the judicial record;
- b) Second stage:- when the documents are tendered or produced in evidence by a party and the Court admits the documents in evidence. A document admitted in evidence becomes a part of the judicial record of the case and constitutes evidence.
- c) Third stage:- the documents which are held ‘proved, not proved or disproved’ when the Court is called upon to apply its judicial mind by reference to Section of 3 of the Evidence Act. Usually this stage arrives 31 the final hearing of the suit or proceeding. See. Sudir Engineering Company vs Nitco Roadways Ltd., 1995 IIAD Delhi 189.
I till now discussed the fundamental principles relating of receiving of documents in a suit. A word about principles relating of proof, admissibility and genuineness of documents would not be out place. For more clarity, I also mention herewith the relevant case -law besides the principle of law relating to receiving, marking, admissibility, proof, relevancy and genuineness of documents.
Mere receiving of a document does not entail any adjudication as to its admissibility or proof. 2004 (6) ALT 418 Setti Siddamma Vs. S. Ramulu
- Mere receiving of a document does not entail any adjudication as to its admissibility or proof. As was held in Sait Taraji Khimechand VS. Yelamarti Satvam, AIR 1971 SC 1865, ‘the mere marking of an exhibit does not dispense with the proof of documents’. 2014(5) ALT 93 (D.B.) IVRCL Assets and holding Lmited Hyderabad Vs AP State Consumer disputes redressal commission.
- If an unregistered and insufficiently stamped document if marked as a document does not amount to admitting in documentary evidence. 2014(1) ALT 356 Vanapalli JayalAkshmi Vs A.Kondala Rao
- An agreement of sale requires payment of stamp duty and penalty before it is admitted in evidence. 2010 94) ALT 58 (SC) S.Kala devi Vs V.R. Soma Sundaram and others
- Administration of unregistered agreement of sale in a suit for specific performance. 2008(6) ALD 92 (SC) K.B.Saha and Sons (P) Limited Vs Development Consultant Limited
- Collateral purpose: Collated transaction and certain principles of law relating to admissibility of document requiring of stamp duty and registration of documents 2017(2) ALT 736 Budda JagadeeswaraRao Vs Sri Ravi enterprises Rep By its Proprietor. Once the instrument is duly impounded, it is as good as originally duly stamped.
On the point of “Collateral purpose”…
2017(2) ALT 736 Budda JagadeeswaraRao Vs Sri Ravi enterprises Rep By its Proprietor.
There is no prohibition under Section 49 of the Registration Act, to receive an unregistered document in evidence for collateral purpose. But the document so tendered should be duly stamped or should comply with the requirements of Section 35 of the Stamp Act, if it is not stamped, as a document cannot be received in evidence even for collateral purpose unless it is duly stamped or stamp duty and penalty are paid under sections 33 and 35 of the Stamp Act.
2017(2) ALT 736
- Buddha JagadeswaraRao”s case. Effect of non-registration of a document shall not affect any immovable property covered by it.
- Scope of an Agreement of sale
Narandas Karsondas v. S.A. Kamtam and Anr.(1977) 3 SCC 247 Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property.
A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. See Rambaran Prosad v. Ram Mohit Hazra,1 SCR 293.
- Scope of Power of Attorney
Rajasthan vs. Basant Nehata- 2005 (12) SCC 77 2011 (3) ALT 19 (SC)H.Siddigui (Dead) by LRs Vs A.Rama Lingam.
- Mere admission of signature/and denial of its contents does not amount to admission of such document unless the contents of such document have sale probative value
AIR 1983 SC 684 State of Bihar Vs Radha Krishna Singh
- Mere admission of document by itself does not automatically prove its contents as its probative value is altogether different.
J.Yashoda Vs K. Shoba Rani 2007(3) SCJ 825
- Secondary evidence :- Secondary evidence as a general rule, is admissible only in the absence of primary evidence.In order to enable a party to produce secondary evidence it is necessary forthe party to prove the existence and execution of the original document.
2015(3) ALT 575 G.Sukhendar Reddy Vs M .Pullaiah
- Principles relating marking and admission of documents.
2016(2) ALT 557Syed Yousuef Ali Vs Md. Yousuf and Others
- Stamp duty on possessory contract of sale (Sec Article 47-A of schedule I -A of stamp Act)
- Mere marking of document does not dispense with its proof
Sait Taraji Khimechand Vs Yelamarti Satvam
The mere marking of an exhibit does not dispense with proof of documents
- Admission of document
AIR 1928 Lahore 432
Ferozchin Vs Nawnb Khan
Admission of documents under Order 13 Rule 4 of CPC does not bind the parties and unproved documents cannot be regarded as proved nor do they become evidence in the case without formal proof. See also: Sudir
Engineering Company Vs Nitco Roadways Limited.
- There are two stages relating to documents
AIR 1931 Lahore 546
Baldeo Sahai Vs Ram Chander & others:
There are two stages relating to documents. One is the stage when all the documents on which the parties rely or filed by them in court. The next stage is when the documents are proved and formally tendered in evidence. It is at the later stage that the court has to decide whether they should be admitted or rejected.
Sudir Engineering Company Vs Nitco Roadways Limited:
Admission of a document in evidence not to be confused with proof of a document.
- Production of documents by the parties. Order 7, Rule 14 and Order 8 , Rule 1A CPC.
Salem Advocate Bar Association,Tamil Nadu Vs. Union of India, AIR 2005
Held: Order VII relates to the production of documents by the plaintiff whereas Order VIII relates to production of documents by the defendant. Under Order VIII Rule 1A(4) a document not produced by defendant can be confronted to the plaintiff’s witness during cross-examination. Similarly, the plaintiff can also confront the defendant’s witness with a document during cross-examination. By mistake, instead of ‘defendant’s witnesses’, the words ‘plaintiff’s witnesses’ have been mentioned in Order VII Rule (4). To avoid any confusion, we direct that till the legislature corrects the mistake, the words ‘plaintiff’s witnesses, would be read as ‘defendant’s witnesses’ in Order VII Rule 4. We, however, hope that the mistake would be expeditiously corrected by the legislature.
- A distinction between the nature of the documents covered under Order 7, Rule 14 and Order 13, Rule 1 CPC
Katakam Viswanatham vs Katakam China Srirama Murthy AIR 2004 AP 522,
2004 (3) ALD 338, 2004 (3) ALT 791
Held: A document filed under Order XIII, Rule 1 as a piece of evidence in support of the claim of one of the parties to the suit filed along with the pleading may eventually be proved or may not be proved by the concerned party depending upon the issues involved in the suit Order 13, Rule 1 deals with only reception of the documents by the Court as part of the record of the suit. It does not deal with reception of the document as a piece of evidence. Rule 13 deals with a stage prior to the reception of the evidence in the suit. Whereas Order 7, Rule 14 deals with different situation altogether. There is a clear embargo on the reception of a document in evidence, which forms the basis of the suit and filed by the plaintiff along with the plaint, but not filed.
The Court of course is vested with the discretion under Sub-rule (3) of Rule 14 to receive any such document contemplated under Rule 14(1) at a belated stage by granting leave.
20 Receiving the documents in evidence at a belated stage.
Lukka Srinivasa Rao @ Venkateswarlu Vs.Lukka Sivaiah
2016 (1) ALT 36.
Observed: As regards the proposition of law viz., that Order-VII Rule-14(1) C.P.C. enjoins upon the plaintiff to file all his documents along with the plaint and that unless he puts forth convincing reasons, the Court cannot allow him to file the documents at a later stage, the same is unexceptionable. Indeed, this Court has reiterated this legal position in both the judgments cited by learned counsel, as referred to supra. However, whether a party has put forth sufficient reasons for filing the documents at a belated stage or not, depends upon the facts of each case and no hard and fast rule can be laid down in that regard.
- Marking of documents subject to objection.
Sri Kathi Narsinga Rao vs Kodi Supriya And Another, C.R.P.Nos.4384 of 2015 and batch. Dt. 29-09-2016. 2017 (1) ALD 626. Observed. 1. In fact from the expression in Bipin Shantilal there was a direction as guidance to be followed by all Courts while marking documents including on secondary evidence as subject to objections by let open to decide ultimately on the objection while recording the evidence, unless it touches stamp duty and registration to decide instantly. In fact Shalimar Chemicals supra particularly at Para 10 internal Para 20, the expression of the Apex Court in RVE Venkatachala Gounder Vs. Arulmigu Viswesaraswamy and V.P.Temple, referred and relied which speaks about objections as to admissibility of documents in evidence may be classified into 2 classes, one is objection that the document which is sought to be proved is inadmissible and the other towards the mode of proof.
- In the case of objection as to admissibility, it is only a procedural aspect, if not raised while marking, it is not open to raise later including on secondary evidence for as good as primary evidence.
- Whereas objection as to mode of proof even not raised while marking unless it is proved it cannot be considered in evidence for which there is no waiver, thereby even no objections raised on mode or method of proof there is no waiver to consider document proved or not from objection can be raised on proof at any time but for on the objection as to nature of document for its admissibility if not raised while marking that amounts to waiver.
- Indian Stamp Act is a fiscal statute in nature. Hameed Joharan (D) And Ors vs Abdul Salam (D) By Lrs. And Ors, 2001 (7) SCC 573 Turningattention on to Section 2 (15) read with Section 35 of the Indian Stamp Act, be it noted that the Indian Stamp Act 1899 (Act 2 of 1899) has been engrafted in the Statute Book to consolidate and amend the law relating to stamps. Its applicability thus stands restricted to the scheme of the Act. It is a true fiscal statute in nature, as such strict construction is required to be effected and no liberal interpretation.
- An unregistered and insufficient stamp documents are inadmissible in evidence
- Pariti Suryakanthamma and another Vs. Saripalli Srinivasa Rao and another, 2010(2)ALD847, 2010(2)ALT648. An unregistered and insufficient stamp documents are inadmissible in evidence.
- Rachakonda Ramakoteswara Rao and Others v. Manohar fuel centre,nereducherla, khammam and another, 2003 (2) ALD 638
“The bar engrafted under section 35 of the stamp act is an absolute bar and, therefore, the document cannot be used for any purpose, unlike the bar contained in section 49 of the indian registration act (for brevity ‘the Registration Act’).
- If instrument-unregistered and insufficiently stamped runs in two parts, which are separable-on stamp duty required to be paid on impounded respectively.
Buddha Jagadeeswara Rao vs Sri Ravi Enterprises, CIVIL REVISION PETITION
No.1850 of 2015, Dt. 23-08-2016. V. Anjaneyulu vs Vadapalli Peddanna @ Peddaiah, 2005 (5) ALD 206, 2005 (4) ALT 674 Also it was held that, a document executed within the meaning of instrument-unregistered and insufficiently stamped, if it runs in two parts which are separable-on stamp duty required to be paid on impounded respectively, the portion which is required to be registered cannot be looked into but for collateral purpose and the other portion which is not required to be registered can be looked into for main purpose.
- When a document is sent for impounding, RDO cannot take different view. Purini Krishnaiah vs Nuvvuru Venkata Ramanaiah AIR 2005 AP 504, 2005 (5) ALD 151, 2005 (6) ALT 202
Held: – Whatever may be the power of the jurisdiction of the RDO under the Indian Stamp Act, while dealing with the document, which came to be presented before him under Section 33 once a document was referred to him by a Court, he cannot take the view that the document does not require any impounding, or collection of deficit Court fee, at all. Such a course would amount to sitting in appeal, against the order of the Court, which has sent the document.
- Collection of stamp duty together with penalty
Chintalapudi Annapurnamma vs Andukuri Punnayya Sastry 2000 (3) ALD 649, 2000 (3) ALT 159
“If an application is made before a Court for sending a document to the Revenue Divisional Officer for collection of stamp duty, is the Court bound to do so or is the Court free to impound the document itself and admit the document on collection of stamp duty together with penalty.”
- Unilateral cancellation of deed cannot be made in the absence of any specific provision for the Registrar to do so.
G.D. Subramaniam v. The Sub-Registrar, Konur, 2009 CIJ 243 Madras
See also. Satya Pal Anand vs. State of M.P. and Others, CIVIL APPEAL NO. 6673 OF 2014.
- Sub-Registrar cannot refuse to register a document.
Nagineni Venkata Subba naidu vs. Sub-Registrar, Tirupathi, AIR 2006 AP 363, LAWS(APH)-2005-11-101, 2006(1)ALD679.
- When objection to be taken for marking of a document? the document to be marked is in presence of parties and they have an opportunity to object for marking and though it is also the duty of the Court to determine judicially on sufficiency of stamp duty before admission, same arises generally when an objection in this regard was taken by the party in opposing for marking as insufficiently stamped. If it is marked not in the presence of opposite party or even from presence an objection for marking was taken the question of waiver or taking away the objection does not arise.
See. Vemi Reddy Jkota Reddy vs Vemi Reddy Prabhakar Reddy, 2004 (2) ALD 627.
Conclusion: The marking of a document as an exhibit, be it in any manner whatsoever either by use of alphabets or by use of numbers, is only for the purpose of identification. While reading the record the parties and the Court should be able to know which was the document before the witness when it was deposing. Absence of putting an endorsement for the purpose of identification no sooner a document is placed before a witness would cause serious confusion as one would be left simply guessing or wondering while was the document to which the witness was referring to which deposing.
Endorsement of an exhibit number on a document has no relation with its proof. Neither the marking of an exhibit number can be postponed till the document has been held proved; nor the document can be held to have been proved merely because it has been marked as an exhibit. See. Sudir Engineering Company vs Nitco Roadways Ltd., 1995 IIAD Delhi 189.
Examining the factum of admissibility of a document and the factum of forming a judicial opinion to know whether it is proved , disproved, or not proved are two important tasks which are linked to documents when a document is placed before a court. When the Court is called upon to examine the admissibility of a document, the court has to concentrates only on the document. When called upon to form a judicial opinion whether a document has been proved, disproved or not proved, the Court has to look not at the document alone or only at the statement of the witness standing in the box; it would take into consideration probabilities of the case as emerging from the whole record. It could not have been hurdle of any law, rule or practice direction to expect the Court applying its judicial mind to the entire record of the case, each time a document was placed before it for being exhibited and form an opinion if it was proved before marking it as an exhibit.
Source : This Article was written by Author Y.Srinivasa Rao Judge and first published on Articles On Law and republished in public interest by Association of Judicial Reforms India