Tendering of Documents in Court

When a document is marked an exhibit without any opposition or objection from the opposite party  which is affected  in some way or other by marking of that document , then in such a case its admissibility cannot be challenged or questioned at a later stage. Therefore tendering of documents in court  is extremely important at the time of examination of chief.

However opportunity may still be given when there appears to be no application of mind and in violation of such provisions of a statute which requires a certain  mode of proof and such opportunity may still be availed at the stage of final arguments questioning its inadmissibility  in evidence which requires to be excluded due to statutory bar or non compliance of such requirement. The High Court of Delhi in Shail Kumari vs Saraswati Devi on 2 August, 2001, Criminal Appeal No. 607 of 2000 has dealt with the issue of admissibility of  document and of marking of exhibit mark on them immediately when the dispute was raised or after at least the application was moved . The said judgment is a guiding light on the issue.

Requirement of proving a Will

In accordance of section 68 of the Indian Evidence Act ,examination of  at least one of the attesting witnesses is required for proving a will .

Marking of Documents during examination in chief

The Honp’ble Supreme Court in Sait Tarajee Khimchand and Ors. v. Yelamarti Satyam and Ors. has laid down that mere marking of an exhibit does not dispense with the proof of the document. All those document which are not proved in the view of the court by judicial evidence are simply to be marked for the purpose of their identification. Marking of documents are usually done as Mark A , B C etc and in bunch then A1 to A5 etc. Documents which are tendered during examination in chief of witness and have been admitted and in view of court been proved by judicial evidence or otherwise are exhibited as P1 , P2 etc and in case of defendants as D1, D2, etc or at times could also be marked as PW1/1 etc or DW1/1 etc. However mere marking of documents are not by itself  proof of admissibility of documents in evidence.

Ways of tendering of Documents in Court

In Baldeo Sahai v. Ram Chander and Ors. AIR (1931) Lahore 546 it was held:

“There are two stages relating to documents. One is the stage when all the documents on which the parties rely are filed by them in Court. The next stage is when the documents are proved and formally tendered in evidence. It is at this later stage that the Court has to decide whether they should be admitted or rejected. If they are admitted and proved then the seal of the Court is put on them giving certain details laid down by law, otherwise the documents are returned to the party who produced them with an endorsement therein to that effect.”

Delhi High Court (Original Side) Rules 1967 provides for certain rules that is followed by courts for tendering documents in evidence and its admissibility.

Para 13 of the Judgment of the Hon’ble High Court of Delhi in  Shail Kumari vs Saraswati Devi on 2 August, 2001, Criminal Appeal No. 607 of 2000   gives certain insights on the practice of subordinate civil courts while tendering documents in evidence as  under-

The practice in the Subordinate Civil Courts is that a document, which is tendered by a party and is admitted in evidence by the court, is marked exhibit number

• if it is admitted by the opposite party, or
• its formal proof has been dispensed with by the opposite party affected by it, or
• it is certified copies of public document or otherwise admissible in evidence like certified copies issued under Bankers’ Books Evidence Act 1891, or
•  is 30 years old document or
• it has been proved by judicial evidence in accordance with the provisions of Indian Evidence Act.

–“Sometimes the trial court also put exhibit number with note ‘objected‘ by counsel of the plaintiff or defendant (the affected party) or writing note ‘subject to objection’ or ‘subject to objection of the counsel’ for the party affected by the document. The exhibit number put on a document signifies its acceptance and admissibility in evidence and also that it has been proved by judicial evidence or otherwise and that it will be read in evidence. Writing of words ‘objected’ by opposite party or ‘subject to objection’ by opposite party indicates that the question of admissibility is kept open to be decided later or at the time of hearing of final arguments and the marking of exhibit is only provisional or tentative.”

Conclusion

The Hon’ble High Court of Delhi in  Shail Kumari vs Saraswati Devi on 2 August, 2001, Criminal Appeal No. 607 of 2000   allowed the Petition  stating that “

Having regard to the above discussion and the judgment of the Division Bench cited above. I am of the considered view that the learned Civil Judge committed material irregularity in the exercise of jurisdiction in not deciding the question of admissibility of the document marked ‘X’ and ‘Y’ and of marking of exhibit mark on them immediately when the dispute was raised or after at least the application was moved by the petitioner making this request.

It is clear from the above that while tendering documents at the time of examination in chief it is extremely important that  valid objections are raised so that no further complications are left till the final arguments. You may click here for more inforamtion

Contributed by:

Tapan Choudhury
Advocate
Mobile No -9873628941