ADMISSIBILITY OF DOCUMENTS IN EVIDENCE IN CIVIL CASES – MARKING OF DOCUMENTS AS EXHIBITS Parties rely upon various documents in their pleadings and/or enlist such documents in support of their pleadings or contentions. These documents can be taken on record by the court and read in evidence only if relied upon, produced, and exhibited in accordance with rules and settled principles laid down by the courts. This is a matter of vital importance often treated casually and overlooked. A document once admitted in evidence, without objection and marked as an exhibit by the court, becomes part of judicial record. The question then arises as to whether it is open to the court to relook at the admission of such a document, not objected to when tendered and marked as an exhibit in evidence? When and in what circumstances is this permissible and when does such admission become a fait accompli and beyond the scope of judicial review? Often times, the process raises a conundrum for judicial officers and lawyers, particularly when an objection is raised after the document is already admitted on record and marked as an exhibit. Admission of a document in evidence is different from proof of its contents. The latter, a separate topic by itself, is not dealt with herein. Marking of exhibits The courts have evolved the practice of marking of exhibits while recording evidence, as a matter of convenience and for ease of identification. The expression “exhibit” is not defined in the Civil Procedure Code, 1908. The Civil Procedure Code, 1908, contemplates admission and rejection of documents in evidence and the due endorsements to be made thereon by the court. Order 13 Rules 3 and 4 of the Civil Procedure Code, 1908 provide 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 initialled by the Judge. The High Court of Delhi in Sudir Engineering Company vs Nitco Roadways Ltd., 1995 IIAD Delhi 189, has elucidated this practice of marking of exhibits as follows: Para no.6. Let me now look at the law. Any document filed by either party passes through three stages before it is held proved or disproved. These are: 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; 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; 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 3 5 of the Evidence Act. Usually, this stage arrives at the final hearing of the suit or proceeding. Para 13. Admission of a document in evidence is not to be confused with proof of a document. Para 14. 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 intendment 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. Para 15. 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 which 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. Para 16. This makes the position of law clear. Any practice contrary to the above said statement of law has no sanctity and cannot be permitted to prevail. Para 17. Every court is free to regulate its own affairs within the framework of law. Chapter 13 Rule 3 6 above said contemplates documents admitted in evidence being numbered in such manner as the court may direct. I make it clear for this case and for all the cases coming up before me in future that the documents tendered and admitted in evidence shall be marked with numerical serial numbers, prefixed by Ext. P if filed by plaintiff or petitioner and prefixed by Ext. D if filed by defendant or respondent. Thus, once documents are admitted on record and marked as exhibits, they can be read in evidence and/or as evidence of transactions, subject to being proved under the Evidence Act, 1872 and other laws. Those documents which are not admitted in evidence and are rejected in terms of Order 13 Rule 3, Civil Procedure Code, 1908, are returned to the party recording the grounds for such rejection.