[Advocate's Diary] Essentials of a civil suit: Marking of exhibits and filing of evidence affidavits

In the last column of the Advocate's Diary series, we discussed the framing of issues in a civil suit, where the court considers the competing claims, defences and counter-claims of both parties, and lays down questions of fact and law which are required to be proved by the parties through trial.

The framing of issues is thus the marker which signals the commencement of trial in the civil suit, after which both parties are first invited to lead their evidence.

In this column, we will deal with the commencement of evidence in a civil suit – the filing of evidence affidavits and the marking of exhibits. We will cover the important changes to the law on leading evidence, as have taken place through the years (such as the 2002 amendment to the CPC, making a shift from oral examination-in-chief to affidavits), and cover the provisions and procedure governing the evidence stage in a civil suit, highlighting subtle differences across jurisdictions.

The evidence stage is arguably the most important stage in a civil suit – where the parties’ pleaded case is put to the test by the court, which analyses the admissibility and relevance of the evidence. In ordinary suits, the plaintiff has the right to begin under Order XVIII Rule 1 of the CPC in all cases, except those where the defendant has (a) admitted the facts as submitted by the plaintiff, or (b) refuted the plaintiff’s claim to any relief in the suit, in which case the defendant gets the right to begin. However, after the advent of the Commercial Courts Act in 2015, both parties are required to lead evidence simultaneously in all commercial suits, as per the amended Rule 1A to Order XVIII.

Parties lead evidence after nominating a witness, or multiple witnesses, through a list of witnesses submitted under Order XVI Rule 1 of the CPC. While parties ideally nominate a witness who has personal knowledge of the case, and was involved in the events leading up to the filing of the suit, in cases where such a witness cannot be nominated, parties also propose a witness who is conversant with the suit documents, and can depose on the basis of such evidence.

While the CPC earlier contemplated the leading of oral evidence by witnesses, through chief examination on the witness stand, the method was replaced by the filing of affidavits in lieu of examination-in-chief through the 2002 amendment to the CPC. The manner, and form, of filing evidence affidavits has been laid down in Order XIX of the CPC, under which Rule 3 provides that affidavits shall be confined to those facts which the deponent is able to prove of his own knowledge, and shall (to the extent possible) not contain argumentative or hearsay averments.

The format for evidence affidavits, both in the context of what they are required to contain, and how they are required to be filed and presented, is provided under Rule 6 of Order XIX. In brief, affidavits are required to contain statements which are in the deponent’s own knowledge, and those which are not, but are part of the party’s pleaded case (where they are also required to state the source for such information or belief), following a chronological order of events, and being numbered consecutively (as a matter of form).

After the filing of the evidence affidavit, the witness is sworn in by the court, and the documents produced by the parties along with their respective pleadings, are marked as exhibits. Marking of exhibits is a formal process to provide ‘marks’ of identification to each document produced by the parties, as was recognised by the Delhi High Court in Sudhir Engg Co v. Nitco Roadways Ltd.

Marking of a document into evidence is not a measure of its proof; that is a matter of judicial determination by the court. Once a document is marked into evidence, it is provided an identification mark dependent upon the party’s status in the suit. For instance, a plaintiff exhibit will usually be marked as Exhibit P-1 and so on. However, much of these procedural details differ from jurisdiction to jurisdiction in different states in India.

Under the CPC, Order XIII Rules 3 and 4 discuss the rejection of irrelevant or inadmissible documents, and the general marking procedure for documents admitted in evidence, respectively. At the stage of marking, the two objections which are taken by the counterparty to a document being marked into evidence are relating to (a) the admissibility of the document, and (b) the mode of proof.

In the case of the former, courts are advised to refuse to mark any document into evidence which is inadmissible to begin with. For instance, in cases where a party seeks to rely upon an unregistered document (in cases relating to immovable property), when such a document is required to be compulsorily registered as per the provisions of the Registration Act 1908, a court must refuse to mark such document into evidence, recording the reasons before rejecting it to be marked into evidence. In the case of the latter, an objection regarding mode of proof must be raised by the counterparty at the earliest. This provides the party relying on the document the opportunity to remedy any error or insufficiency of proof, to enable its marking.

The principles on marking of documents and the rejection of inadmissible documents were aptly summarised by the Supreme Court in RVE Venkatachala Gounder v. Arulmigu, where the Court observed that:

“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 when 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 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 parties..."

As a matter of practice, parties are often advised to lead their ‘best’ evidence - to produce original documents wherever possible - in order to forego any issues of marking and admissibility. The best evidence rule is captured under Sections 92 to 100 of the Bhartiya Sakshya Adhiniyam, 2023 (BSA) (and its predecessor, the Indian Evidence Act 1872), while the leading of secondary evidence is provided for under Section 65 of the BSA.

The intricacies of marking, and the rules governing the marking of documents often vary from court to court, and are dependent on jurisdiction. For instance, in Delhi, the marking of documents in civil suits before the Delhi High Court is governed under Part G, Volume I of Chapter I of the Delhi High Court (Original Side) Rules 1967. These Rules state that each document marked into evidence must be given an exhibit number, has to be given a label by the court master (indicating the party by whom the exhibit is marked), and contain the initials and signature of the presiding officer, along with the date on which the document is marked through the sworn witness. Similarly, in Karnataka, Rules 82 to 85 in Chapter XI, Part C of the Karnataka Rules of Civil Practice 1967 govern the process of marking of documents.

Tanvi Dubey is an independent practitioner at the Supreme Court of India, with a diverse practice ranging from civil, commercial and constitutional disputes to service matters before the Supreme Court and other fora in Delhi.

Sumit Chatterjee is a civil and commercial dispute resolution lawyer at Arista Chambers, practicing before the Karnataka High Court, trial courts and a wide array of tribunals in Bangalore.

The authors would like to acknowledge the efforts of Maya Bharat, Vansh Chauhan, Gauri and Ojeswita for their research assistance.