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24. Question:- The term “acquiescence”, when is applicable to the recording of evidence and about identification of documents as Exihibits and Mark ?
Answer:- 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. The rule of fair play insists that, if a party had not insisted proper mode of proof about a document, he is showing acquiescence to the said proof. He cannot object that afterwards.
25. Question: Prior to Approaching Superior Court, to file Revision Petition, what should be done ?
Answer:- For each Document, Article/ Material Object, or Point at such Exihibits, if not allowed to be Exihibited or recorded in the Evidence of a Witness during recording of evidence, an Application (Miscelleneous Application or Interlocutory Application each, should be moved before the Same Court/ Trial Court, at the earliest opportunity. Two principles are to be remembered while moving these Applications:- (1) Prior to the memory of the Learned Presiding Officer (Hon’ble Judge) will vanish about the incident took place in the Court room while recording evidence, the Application should be filed. And (2) Those who are sitting on the fence have no right to say grievance = those who want to wait till final judgment is passed, should not make a grievance about lost opportunities. However, the Doctrine of Finality is not attached and there is no limitation or laches, as held in 2002 (96) DLT 131.
26. QUESTION: When the Application to be decided ? Immediately or along with Final Arguments of the case ?
Answer:- Immediately, the reason is, theoretically, at the time of final arguments, the File should concist only those Documents/ Objects which are admitted as an evidence. Rest all are to be returned to respective parties with endorsement upon them that, they were not admitted in evidence, as held in 2002 (96) DLT 131.
27. QUESTION: Whether a Subordinate Court at Delhi have the Jurisdiction to form it’s own procedure, while admitting or rejecting evidences ?
Answer:- No. It have to comply with Law and Precedence, as held in 2002 (96) DLT 131.
28. QUESTION: How many Revision Petitions to be filed ?
Answer:- Even when the Hon’ble Trial Court had been pleased to decide and deny all the Applications in a single Order, thus failed to exercise the Jurisdiction; separate Revisions are to be filed, for each legal question of law/ application. 2002 (96) DLT 131.
29. This chapter of “What are Exihibits and Mark” is a unique chapter, because, no Text Book is yet found having this chapter. Merely citing Sections or Sub-Sections of the Acts is not going to give proper guidelines to draft a petition. It requires further guidance. That is, how to find relevant Case Law.
30. If the person reading this book is having access to Softwares of legal judgements, the Author will recommend “free word/ phrase” search for the following words: “document mark”, because, following words will be used in each judgements at this context ‘document is got marked’, ‘document has been marked’ or ‘the document has not yet been proved; how it can be marked as an exhibit?’. While finding out Law from a Digest or AIR Manual, following “heading” may be seen: Document, Documentary Evidence, Sections 61 to 90A of the Indian Evidence Act will have narrations of various documents, when accepted in Evidence or when rejected as an Evidence. However, only point to note is, if the Case is studied is about Delhi Subordinate Courts, the word “Mark” also can be found; otherwise, like how it was written at the beginning of this chapter, the only word could be found is “Exihibit – whether proved to be decided later”.
SELECTED CASE LAW
Party/ witness who had been testifying the evidence had produced only a photocopy of the document and not the original. He did not give the place where the original can be found. He did not say any reason, why original is not produced. Copy cannot be marked as an Exihibit, thus cannot be relied. ILR (1904)31 Calcutta 155.
Witness testified that, copy which is provided in the evidence has been used since many days in place of Original and that is relied within the house – It is not sufficient to presume it as original or copy of the original. AIR 1929 Calcutta 459.
Execution of the document is proved – The opposite party can always lead evidence to prove that, contents of the document is not truly recorded. AIR 1983 Ker 81.
Registered Sale deed tendered as evidence – Certified copy produced – Party failed to examine the Vendors/ Vendees – Despite this defect of ‘Best possible persons not examined to prove the document’ it can be relied by the Court. AIR 1994 Allahabad 66.
Anonymous letters cannot be proved by the persons who wrote that – Thus it cannot be marked as an Exihibit. 1987 Lab IC 1493.
Anonymous Letter – Relied to probe by CBI - By Soldiers to others families – Army informed missing/ desertion of a soldier – His wife got anonymous letters, 2 nos, narrating there was fight between soldiers in barracks and her husband died – Army refused to investigate – Writ petition enclosing Anonymous letters as Annexures – Held: It is now directed that the Respondent No. 6 would depute an Officer, not below the rank of Superintendent of Police attached to in any of its Wings to conduct a Preliminary Enquiry with regard to the missing of her husband, Sepoy Tapas Kumal Pal and the apprehension of his death during a course of scuffle within the Cantonment area on the basis of the Annexures and averments made in the Writ Application and Affidavits. Para 95 of Smt.Mita Pal and Anr. Versus Union of India (UOI) and Ors., 2006 Legal Eagle(Cri) 2150 : 2006 CrLJ 1647 (Calcutta).
Anonymous letters – Identified as Exihibits – Relied to give Divorce - At the Para 25 of the Judgement dated 30-3-2007, by Hon’ble Dr. Justice S.Muralidhar, granting Divorce for Adultery in the Matrimonial Appeal No.16 of 2005, titled H Vs. W & Anr, reported as (2007) 143 DLT 393 : (2007) 97 DRJ 609; it can be seen that, unsigned anonymous letter was believed to give divorce. Complete point is quoted in the Chapter about Matrimonial Law of this book.
A party had consented to mark a document as an Exihibit, when opposite party was testifying its evidence – It is not a consent about genuinity of that document – That party can lead evidence that, contents of that document is not genuine. AIR 1973 Bombay 40. AIR 1993 Orissa 103.
A document is marked as an Exihibit – However, unless the contents are proved through corroboration evidence, the document not to be relied. AIR 1971 SC 1865.
Carbon copy of a document is not an Original – It is not a counter part of an original – Thus, it cannot be marked/ identified as an Exihibit and it cannot be relied. 1975 WLN (UC) 98 (Rajasthan).
Contents of a document reported in a News paper – News paper cannot be an Exihibit – It is a secondary evidence under Section 63 of the Evidence Act. AIR 1969 SC 1201.
If the News Reporter is not willing to testify as a witness, that how he perceived the facts he had reported in the news item, news report cannot be exihibited – Not admitted as an evidence. State of Haryana Vs. SA Khan, AIR 1993 SC 1348.
Sale Deed – Whether Vendor’s ownership should be proved separately, to be relied as an Evidence – Held - Primary evidence means the document itself produced for the inspection of the court. Section 61 of the Evidence Act, 1872 embodies the general rule that the contents of a document may be proved either by primary or secondary evidence. If the original document exists and is available it must be proved because it is the best evidence. The contents of a document can be proved by the document itself. After all, when a given matter has been expressed in writing the primary evidence is the writing itself. The sale-deed Ex.PW1/1 having been proved and the mode of proof having in any case not been objected to, it is the best evidence of its contents. Therefore, the finding of the learned First Appellate court that the contents of the sale-deed were not proved cannot be sustained. Paras 2 and 3 of the Om Prakash Sharma Versus Kishan. 2009 (157) DLT 22 : 2009 (108) DRJ 265 : 2009 (3) AD(Del) 465 : 2009 (109) DRJ 80.
Voters list – Filed to disprove the identity of the Vendor of a Sale Deed – When Voters list not relied – Held – Alleged that, the execution of the Sale Deed stands proved; however ownership has not proved principally on two grounds: firstly that proof of execution of the Sale Deed Ext.PW1/1 did not prove its contents and secondly the vendor Mohd.Yusuf was not proved to be the owner - There is no evidence nor any allegation that the father of Mohd. Yusuf was some Niaz Ahmed other than the husband of Aziz Begum. Faced with this situation reliance was placed on Exhibit DC which is the voters-list and wherein Mohd. Yusuf is shown to be the son of Mohd. Yakub and consequently, it was sought to be contended that Mohd. Yusuf was not the son of Niaz Ahmed. What needs to be noticed is that the voters-list Exhibit DC was not got filed by any officer from the Electoral Department or by any other person. It was just tendered and exhibited without examining any person. The person who prepared the list was also not produced. It cannot thus be taken to be substantive piece of evidence and is no proof of the fact that Mohd. Yusuf is not the son of Niaz Ahmed, specially, in view of Ex.PW1/1 which as noticed above was duly proved by the appellant. Paras 2 and 4 of the Om Prakash Sharma Versus Kishan. 2009 (157) DLT 22 : 2009 (108) DRJ 265 : 2009 (3) AD(Del) 465 : 2009 (109) DRJ 80.
Lease Deed – To prove market rent of the Premises – When not relied - Document Mark A dated 22.8.1989 produced during cross-examination of PW 2 is in respect of 8th floor of Hansalaya building for a flat rate of Rs. 1333 sq. ft. from 22.8.1989 to 21.8.1992. This document however cannot be taken into consideration as it has not been exhibited. Para 30 of the National Radio & Electronic Co.Ltd. Versus Motion Pictures Association, 2005 (122) DLT 629.
Sale Deed – When not relied - Document marked 'A' has not been produced and proved in the trial in accordance with law. The same is stated to be a sale deed by which the land was purchased by Krishna Behl. Smt. Krishna Behl did not appear in the witness box in support of the plaintiffs. She also did not support the plaintiffs by filing a written statement in support of the suit. Her son, who had appeared as a witness of the plaintiffs, categorically stated that the plaintiffs have no right to the land. Surinder Singh Versus Union of India, 2005 AIR(Del) 90 : 2004 (6) AD(Del) 300 : 2004 (113) DLT 754 : 2004 (76) DRJ 478 : 2004 LE(Del) 598.
Insurance Policy – Of the similar policies, to prove limited liability of the Insurer – When not believed - The document which the insurance company wants the court to rely must be either original or photocopy or at least office copy. Mark-A is prepared on a totally different form. Therefore, it cannot be called true copy of the original or of office copy. In the absence of the original or the office copy, no reliance can be placed on this attested copy of the insurance policy. It has not been explained as- to from which document Mark-A was compared. In the absence of any explanation, to my mind, mark-A must have been prepared from imagination. Mr. R.K. Khanna, RW-1, has not explained as to from where and when this attested copy was prepared, because the original was not in company's possession and the office copy stood destroyed. Therefore, in the absence of the original as well as of the office copy, how could he prepare Mark-A and attest it unless he was doing it from his imagination. Om Wati Versus Mohd.Din, 2001 (91) DLT 184 : 2001 LE(Del) 69 : 2001 (4) AD(Del) 246 : 2001 (60) DRJ 799 : 2002 (1) RCR 515 : 2002 (1) RCR 515 : 2001 (58) DRJ 367.
Inquest Examination of the dead body was carried out by the Police officer, the Investigating Officer – The witnesses are duty bound to sign in the documents, and also make their Statements – Under Section 162 of the Criminal Procedure Code, 1973 the documents signed by the witnesses, cannot be relied if the Police had produced the same – Notwithstanding the said legal loophole, the Inquest Report is admissible as evidence under sections 60 and 61 of the Evidence Act. (1979) 47 Cut LT 171.
Postmortem report – The Doctor conducted postmortem is alive and was on Duty at the same hospital – Hospital Clerk was examined to prove the Postmortem Report and not the Doctor who conduced postmortem – Best Evidence available is not produced – Not admitted as an evidence. Vijender Vs. State of Delhi, (1997)6 SCC 171.
Postmortem report – Through Secondary evidence – When not admissible – Original report was not produced, only a carbon copy was produced – Under Section 64 of the Evidence Act, document must be proved by primary evidence, that is original or Certified Copy – Exceptions mentioned in Section 65 Evidence Act is not applicable – Not admitted as an evidence. Vijender Vs. State of Delhi, (1997)6 SCC 171.
Oral Statement only, without any document as ‘Exihibit’ or ‘Mark’ also are believed – Example – Here, the house in question belongs to the mother-in-law of Smt. Taruna Batra and it does not belong to her husband Amit Batra. Hence, Smt. Taruna Batra cannot claim any right to live in the said house. Appellant No. 2, the mother-in-law of Smt. Taruna Batra has stated that she had taken a loan for acquiring the house and it is not a joint family property. We see no reason to disbelieve this statement. Paras 18 and 19 of the S.R.Batra & another Versus Taruna Batra, 2006 Legal Eagle(Cri) 1028 : 2007 AIR(SC) 1118.
Dishonour of Cheque - Cheque Bounce Complaint – Without producing original of cheques – When permissible - According to the complainant, he had brought the Original Cheques to the Court at the time of filing the complaint and the Court had permitted him to keep the originals leaving the Photostat copies in the Court. The submission is strenuously disputed by the learned counsel for the respondent/ accused/ drawer of cheque. What ever that be, in the Court only copies of the cheques were left when the matter came up for the trial the complainant submitted that the original cheques were lost and a Crime/FIR had been registered in respect of such loss of cheques. The complainant was examined in part (= Complainant had testified his evidence in the Court as his own witness, but the said testification could not be completed), and the Court directed him to produce the original cheques. As he could not produce the cheques, the complainant filed an Affidavit to explain the circumstances under which he was not able to produce the cheques. If really as a matter of fact the cheques are lost it would be improper and incorrect to deny the complainant an Opportunity to substantiate his grievances by adducing secondary evidence as permitted under Section 65 Evidence Act. At any rate, premature discontinuance of the proceedings was not certainly incorrect and improper – Section 138 of the Negotiable Instruments Act, 1881 – Section 65 of the Evidence Act. Chitaranjan Vs. Jayaranjan, (2005)1 Civil Court Cases page 810 (Kerala).
Newly wedded wife left her nuptial home within 2 weeks due to physical non-satisfaction – While going like that she left a letter addressed to her husband – Prior to commencement of Dowry harassment Trial against the sister of the Husband, Hon’ble Mr. Justice S.N.Dhingra, in the case titled Sangeeta Kalra Versus State, 2007 (138) DLT 535 : 2007 (1) Crimes(Del) 761; had relied upon the said letter, to quash the Dowry Complaint against the sister of the husband, who is residing away with her husband and children. This Point is elaborately quoted in another chapter of this book.
Registration Act, 1908, Section 17 (1) — Family settlement — Un- registered document — Deed creating right in property — Hence, it should be registered and unregistered document not admissible in law — 1998 (89) RD 508; AIR 1976 SC 807 — Held: The trial Court relied upon two documents, which were not exhibited during the course of trial and deceased the suit. Aggrieved thereby defendant No. 1, Bhagauti Prasad filed appeal before the lower appellate Court. The lower appellate Court has found that in fact the suit is barred by provision of Section 49 of U.P. Consolidation of Holdings Act. The document family settlement cannot be relied upon as this purports to transfer the rights in immovable property which is not admissible in evidence unless the same is registered under Section 17 (1) of Registration Act. It is admitted case that the document is not a registered document. Therefore, the lower appellate Court has found that the document cannot be relied upon. The lower appellate Court has also held that since the aforesaid codicil has not been executed, the same cannot be relied upon and the trial Court has erred in law and further the suit is barred by provision of Section 49 as it is admitted case of the parties that during the consolidation operation which admittedly took place after the alleged family settlement and codicil came in existence, the name of father continued to be recorded and the names of the sons do not find place in the revenue records. No objection of any sort was raised during the consolidation operation, therefore, after the death of the father both the sons would be entitled to inherit jointly and the stand taken by the plaintiff cannot be accepted. The lower appellate Court therefore, allowed the appeal, set aside the decree and found that the sale-deed relied upon by the appellant which is a registered sale-deed will prevail upon two documents set up by the respondents and further that the plea taken by the defendant No. 2 is barred by provisions of Section 49 of the Consolidation of Holdings Act. Paras 4 to 8 of the Bhabhuti Singh. Versus Bhagauti Prasad & Anr., 2004 JIR 936 (Allahabad).
SELECT CASE LAW ABOUT TAPE RECORDED CASSETTS
Transcript of the Tape Recorded Cassette is not put on the Record at the earliest opportunity – Not admitted as an evidence. AIR 1974 Rajsthan 79.
Not got compared with the voice of the person who alleged to have talked, whose voice is recorded – Not admitted as an evidence. AIR 1985 P & H 128.
Tape were not tamper proof – Not admitted as an evidence. 1980 Cr LJ 41 (Madras).
Independent Corroboration not led – Not admitted as an evidence. AIR 1976 Calcutta 99.
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Decided Case, about Importance of identifying documents not yet proved as “Mark”:-
IN THE HIGH COURT OF DELHI
2002 (96) DLT 131 : 2001 LE(Del) 706 :
2002 (2) AD(Del) 205 : 2002 RLR 249
Shail Kumari. Versus Saraswati Devi
Date of Decision : 02-Aug-2001
JUDGMENT/ORDER:
Judges : Hon’ble Mr. Justice Mahmood Ali Khan
(1) ON the request of counsel for the parties arguments were heard for final disposal of the matter. This revision petition raises a simple as well as a question of great importance to the subordinate courts as to whether in the trial of a civil suit during examination of a witness when a document is tendered in evidence and it is sought to be proved the question of admissibility of that document and marking of the exhibit thereon may be deferred till the stage of hearing of final arguments.
(2) THE factual matrix of the cause is that the petitioner/plaintiff filed a civil suit for declaration that she was the sole and absolute owner of the disputed wall and also for grant of permanent injunction restraining the respondent from raising any further construction in the suit property. On contest by the respondent, the trial court framed the issues. The petitioner did not enter into the witness box herself. She examined her daughter Ms.Geeta Rohtagi as Pw-3 to prove her case. In her statement Ms.Geeta Rohtagi stated that the petitioner had executed a power of attorney in her favour and she identified the signatures of the petitioner on that document. The court put 'mark X' on the document and recorded following observations in the statement;-
"THE document is got marked because it has been filed at a belated stage. And there is no photocopy of the same is available on the record. Its admissibility to be decided at the time of final arguments."
(3) PW3 Ms.Geeta Rohtagi further stated that her mother, the petitioner, became owner of the property by virtue of a registered settlement deed dated 5/9/1950. She has brought the original deed of settlement, Hindi translation of which is 'marked Y' below it the court recorded the following observations;-
“THE document has been marked because of the fact that there is not copy of the same available on record in Urdu language. Though the Ld.Counsel for plaintiff submits that the translation of the same is on record in Hindi. whether should be exhibited or not is to be decided at the stage of final argument”.
(4) THEREAFTER the petitioner filed an application under Order 13 Rule 1 & 2 read with Section 151 Civil Procedure Code seeking permission of the court to produce photocopy of the settlement deed dated 5/9/1950 in Urdu script and also photocopy of a registered general power of attorney dated 31/7/1998. She moved another application under Section 151 Civil Procedure Code inter alia, praying that the objections with regard to the exhibition of the two documents be decided at this stage rather than deferring them for decision at the stage of final argument. She also moved an application for amendment of the Issue No.1. All these three applications were disposed of by the learned Civil Judge by a common order dated 15/2/2000.
(5) THE petitioner is aggrieved by the order of the learned Civil Judge by which he has declined to allow her to file the subsequent power of attorney dated 31/7/1998 and has deferred decision on the question of admissibility of the documents marked "X' and "Y” and marking of exhibits on them at the stage of recording of evidence, to the stage of hearing of final arguments.
(6) AT the outset a question was posed to the counsel for the petitioner whether one revision petition assailing two orders passed on separate and distinct subject matter in a civil suit is competent. The counsel for the petitioner relying upon the judgment in Nand Ram Vs.Karnail Singh and ofhers AIR 1978 Punjab and Haryana 100 has argued that a single petition may be filed for assailing two decisions if made by a common order. I have considered the judgment cited by him and do not find that it supports his argument, In the judgment the High Court has exercised its own powers suo motu for dealing with the second matter observing that it was within the competence of the High Court to set aside the second order if the second order seem to have been passed either in excess or without jurisdiction or with material irregularity or illegality in exercise of the Jurisdiction by the trial court. The court also considered the second order because the application for amendment was really not a serious matter. Therefore, I doubt that a single revision petition challenging two separate and distinct orders dealing with different subject matters is maintainable. Ordinarily orders on different subjects, even though decided by a common order, should be subject matter of challenge in different revision petitions. To do complete justice in certain cases if the court finds it appropriate it may exercise its powers given by Section 115 Civil Procedure Code for revising an order on finding that the second order is the result of an error of jurisdiction, illegality or material irregularity in exercise of jurisdiction by the trial court. Like the case of Nand Ray Vs. Karnail Singh and others (supra) second order is not of much consequence. It is that order by which the trial court had refused permission to the petitioner to file a power of attorney executed by the petitioner in favour of her daughter Ms.Geeta Rohtagi on 31/7/1998.
(7) THE petitioner had ex