THE PRACTICE OF EXHIBITION OF DOCUMENTS UNDER THE INDIAN LAW.

Exhibition of a document in judicial proceedings is a standard customary practice that has been followed for a long period of time. There isn’t any specific provision under the law that governs the expression ‘exhibit’ or ‘marking’ of documents. There are only certain rules laid down in the Delhi High Court (original side) rules with regard to the mandatory marking of the document with exhibit or labeling of every document produced during trial.

PROVISIONS GOVERNING THE ADMISSION OF DOCUMENTS.

Order 13 Rules 3 and 4 of the Code of Civil Procedure, 1908 stipulates rules for admission or rejection of documents. The same read as follows:

Rule 3 - Rejection of irrelevant or inadmissible documents. ― The Court may at any stage of the suit reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection.

Rule 4 - Endorsements on documents admitted in evidence. ― (1) Subject to the provisions of the next following sub-rule, there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars, namely: (a) the number and title of the suit; (b) the name of the person producing the document; (c) the date on which it was produced; and (d) a statement of its having been so admitted; and the endorsement shall be signed or initialed by the Judge.

The Code of Civil Procedure, 1908, thus contemplates admission and rejection of documents in evidence and the due endorsements regarding the authenticity, admissibility and inadmissibility of the Document thereon by the court.

The Chapter XIII Rule 3 of the Delhi High Court (Original Side) Rules 1967  also provides for documents admitted in evidence being numbered in such manner as the Court may direct.

The Original Side Practice Direction (No. 3 of 1974), vide paras 6 and 7 provides:—

Para 6: The Court Master of the Court shall take charge of every document or object put in as an exhibit during the trial of any case and shall mark or label every exhibit with a letter or letters indicating the party by whom the exhibit is put in or the witness by whom it is proved, and with a number, so that all exhibits put in by a party, or proved by a witness, are numbered in one consecutive series.

Para 7: The Court Master of the Court shall examine all documents produced or offered in evidence and bring any apparent insufficiency of the court fee or other stamps to the notice of the Judge for orders. He shall endorse all documents admitted in evidence and all documents rejected with the particulars required by law and sign or initial such endorsement.

 WHO CAN EXHIBIT A DOCUMENT?

The Parties to the suit while adducing evidence can produce the documents which they rely their case on, and these documents would be deemed admitted as evidence subject to the Indian Evidence Act. The naming of these documents as exhibit numbers is a formal act to give identification, and does not dispense with the proof of the document. The documents which are produced before the court of law initially  can ordinarily be marked as A, B, C, or X, Y, Z  for the purpose of their identification and those documents tendered in evidence which are proved by judicial evidence  after scrutiny are deemed to be admitted documents and are given the identification as exhibit number such as Exhibits P1, P2, if they are documents of the plaintiff and Exhibits D1, D2 if they are documents of a defendant or witnesses proved documents  like PW 1/1 or DW 1/1 etc.  

In Shail Kumari v. Saraswati Devi, 2001 SCC OnLine Del 791 it was held that

A document, which is tendered by a party and is admitted in evidence by the Court, is marked exhibit number,

(i) if it is admitted by the opposite party; or

(ii)  its formal proof has been dispensed with by the opposite party affected by it; or (iii) it is certified copies of public document or otherwise admissible in evidence like certified copies issued under Bankers’ Books Evidence Act 1891; or

(iii)  is 30 years old document; or

(iv)  it has been proved by judicial evidence in accordance with the provisions of Indian Evidence Act.

 WHAT IS THE PURPOSE AND PURPORT OF EXHIBITION OF A DOCUMENT?

The High Court of Delhi in Sudir Engg. Co. v. Nitco Roadways Ltd 1995 SCC OnLine Del 251 has elucidated this practice of tendering documents in three stages:

i. when the documents are filed by either party in the Court; these documents though on file, do not become part of the judicial record;

ii. 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;

iii. 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 35 of the Evidence Act. Usually, this stage arrives at the final hearing of the suit or proceeding

In Baldeo Sahai v. Ram Chander, AIR (1931) Lahore 546, it was observed that:

“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 thereon to that effect.”

THE ADMISSION OF A DOCUMENT IN EVIDENCE IS NOT TO BE CONFUSED WITH PROOF OF A DOCUMENT.

 In Sudir Engg.(supra) The High court of Delhi opined that “when the court is called upon to examine the admissibility of a document it 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 would 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 intended 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. The 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 can the document be held to have been proved merely because it has been marked as an exhibit.”

In Hemendra R. Ghia vs Subodh Moody 2008 SCC OnLine Bom 1017 it was held that “Mere cross-examination upon an ab initio inadmissible document would not render it admissible or proved in evidence. Such principle would apply only to a document which is itself admissible in evidence but suffers from the defect of deficiency of stamp duty or if the mode of its proof is irregular.”

OBJECTIONS TO ADMISSIBILTY OF DOCUMENTS CANNOT BE TAKEN AT A SUBSEQUENT STAGE.

In general, the marking of exhibits is only provisional or tentative. The parties may raise objections to the admissibility of the documents when they are presented as exhibits to the court, and the court is required to express its opinion regarding their admissibility or inadmissibility. The documents may be labeled as "subject to objection" or "subject to objection of the Counsel," leaving the admissibility question open to be decided later or during the hearing of final arguments. The admission of a document cannot be contested at a later stage of the proceedings if it is marked exhibit after judicial scrutiny and the party impacted by it does not object.

In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple, (2003) 8 SCC 752 The Supreme court observed that “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.”

The above bench opined that the Objection to the admissibility of documents has to be done in a fair manner. “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.

In Shail Kumari v. Saraswati Devi, 2001 SCC OnLine Del 791 the court opined that in cases where a document is marked exhibit without due application of mind in violation of provisions of a Statute requiring a particular mode of proof etc., the opposite party may still show during the hearing of final arguments that the document is inadmissible in evidence and should be excluded from consideration because of statutory bar or noncompliance of statutory requirement about mode of proof or otherwise.

In Om Prakash v Central Bureau of Investigation: 2017 SCC Online Del 10249, a Coordinate Bench held as that “if a document is admissible in evidence and no objection to the mode of proof is taken thereof at the stage of tendering the same in trial, the party is estopped to challenge the same before the Appellate Court or thereafter, however if the document is per-se inadmissible then even if marked as an exhibit the same cannot be read in evidence."

 THE VALIDITY OF INADMISSIBLE DOCUMENTS

If a document is not admissible and is not given an exhibit identification after judicial scrutiny by the court the document ought to excluded from consideration further at the later stage.

In Hemendra R. Ghia vs Subodh Moody 2008 SCC OnLine Bom 1017 a three judge bench of the Bombay High Court opined that “a document which is ab initio inadmissible in evidence, notwithstanding that such document is admitted in evidence and given an “exhibit” number, the same would not render it a part of admissible evidence or preclude an objection thereafter. It is the duty of the Court to exclude all inadmissible evidence, even if no objection is taken to its admissibility by the parties.

the power of the Court is not fettered or limited to exclude an inadmissible document at a later stage of the same proceedings or even in appeal or revision and the bar of review is not applicable to such judicially inadmissible documents.” the court aslso further opined that a “Mere cross-examination upon an ab initio inadmissible document would not render it admissible or proved in evidence. Such principle would apply only to a document which is itself admissible in evidence but suffers from the defect of deficiency of stamp duty or if the mode of its proof is irregular.

In R.V.E. Venkatachala Gounder (Supra) the Supreme court observed that “mere fact that an ab initio inadmissible document has been marked as an exhibit in evidence and that cross-examination is conducted thereon without any objection from the parties and also overlooked by the Court, the objection can be raised even at the revisional or appellate stage and such evidence is liable to be rejected under Order 13, Code of Civil Procedure, 1908, at any stage.”

This practice of identification of documents by way of marking Exhibits is an important procedure in the trial courts. The objections to its admissibility has to be tendered and addressed specifically in order to avoid legal backlash in the future. Given the judicial precedents over the years that has structured the law on exhibition of documents it has thus been clear that once a document is produced and its authenticity/ admissibility is objected, the court after the applicability of judicial mind with respect to the Indian Evidence Act tenders the said document as an Exhibit, the right to objection thereto would be waived at a subsequent stage.