Introduction
The Bhartiya Sakshya Adhiniyam, 2023 (‘BSA’) which is a mere reflection of the Indian Evidence Act, 1872 elaborately talks about documentary evidence. Documentary evidence includes all documents, including electronic records created for the trial court’s review. A document is anything that is written down or described on a material using symbols, numbers, or more than one of those techniques and that is intended to be used or may be used in the future to record the subject matter.
Documentary evidence has been parted into two silos under Section 56 of BSA namely – Primary Evidence and Secondary Evidence. Primary evidence is mentioned under Section 57 of BSA as original documents that are produced for the court’s scrutiny. Only in cases where the original document is missing or unavailable, secondary evidence pertaining to the contents of private papers is admissible under Section 58 of BSA.
It is important at this juncture to understand the practical process which is followed by courts in terms of the admissibility of documents produced. If a document is produced in the trial court, such document is marked and parties are obligated to argue on the marked documents. It is one thing to decide the admissibility of a document and another to decide the stage when the court will rule on admissibility or proof of a document, i.e., stage of admissibility. It is important to note that ruling on admissibility is to decide on whether a document is admissible or not, stage of admissibility pertains to the time when this ruling on admissibility takes place. It is pertinent to note that neither the Civil Procedure Code, 1908 (‘CPC’) nor BSA have any provisions related to the stage of admissibility of documents. Therefore, this article tries to explore the law laid down relating to the stage of admissibility, points out the flaws in the current position of the law and suggests corrective measures.
Current Position of Law at the Stage of Admissibility
The current position of law is perplexing as there are mixed propositions regarding the stage of admissibility in primary and secondary evidence. In the case of documents qualifying as secondary evidence, the Apex Court in H Siddique v. Ramalingam has mandated the trial courts to decide the relevancy and admissibility of secondary evidence the moment when there is an objection raised i.e., the moment it is produced. This means that a document which qualifies as secondary evidence can only be marked if it is conclusively proved that it is admissible. On the other hand, the Apex Court has also ruled that the stage of admissibility of all kinds of document including both primary and secondary evidence according to Bipin Shantilal Panchal v. State of Gujarat is at the judgement stage i.e., all documents except that of unregistered documents should be marked ‘subject to objection’ and their admissibility has to be decided at the judgement stage. It is important to note that there is a clear distinction in terms of marking a document and deciding the admissibility of a document. Marking means to get the document on record. Admissibility is when the proof of the document is decided conclusively.
Therefore, if analysed in depth the proposition of Bipin Shantilal Panchal (supra) focuses more on bringing the document on record rather than deciding the stage of admissibility. The approach of the stage of admissibility to be at the end in the judgement stage sought to get away with certain problems in the civil trial. These are –
Delay in Civil Trail
In civil trial normally, when a document is produced and assuming that the stage of admissibility is at the moment it is produced then there has to be an order of the trial court on the admissibility of the document. Subsequently, there lies a remedy for the opposite side to challenge the order of the admissibility in appellate courts. Therefore, if there are hundred documents produced and each document has been objected to for admissibility and if the trial court is obligated to decide the admissibility in several different orders at the stage it is produced, then many of those orders will be challenged in the appellate courts which results in delay in trial or suits. The delay will mainly be caused due to the laborious process of trial courts ruling on each objection the moment it is raised. The delay is also caused as these orders will then be challenged and during the pending process of challenge in the appellate court normally the trial in the civil court is stayed. To get away with this challenge Apex Court in Bipin Shantilal Panchal (supra) held that every document’s admissibility if objected together has to be decided in the judgment stage so as to cut down the delay in the civil trial.
Remanding orders of the Appellate courts.
A document is produced and assuming the stage of admissibility to be the moment it is produced, the trial court judge will have to write an order on the admissibility of the document, subsequent to this the same document’s admissibility is not dealt with in the final judgement as it has already been dealt vide an order of the court. It is important to note that this is detrimental as the trial courts have the prevalent practice of not noting anything about the document which is already held to be inadmissible. This is the case for secondary evidence, once a document’s admissibility is decided once it is produced, trial courts normally do not talk about or whisper about the document in the final judgement. This case if followed for all documents leads to a huge remand order of the appellate courts. For instance, a document is produced in the trial court and the trial judge writes an order stating that the document is inadmissible and subsequently, the judgement is given without relying on the document as it is held to be inadmissible vide an order of the court. In appeal, if one of the parties shows the same document and contends that the document was not relied on by the court then there is a high possibility of the appellate court remanding the matter back on the sole reason that the document is not on record and not dealt in the final judgement. This again leads to delays in civil trials.
Problems created By Bipin Shantilal Panchal
The problems created by this judgement have been myriad.
Firstly, there is an ambiguity created by the term ‘document’. There is a tendency to include all types of evidence under the general term of the document. This has created confusion as the rule of secondary evidence is simple wherein when the document is produced the admissibility has to be decided the moment it is produced. However, as there is no clear distinction between primary and secondary evidence, the trial court judges now have the tendency to allow the said procedure laid down in the judgement for secondary evidence documents.
Secondly, there is an ambiguity created by the term ‘material on record’. There is confusion about the mere marking of documents or whether can this term be enlarged to include all the documents which were produced and the orders of trial court judges assuming the stage of admissibility the moment it is produced.
Thirdly, an important aspect that has to be looked into is the provisions of CPC, in Order XIII Rules 3 & 4 which contemplates the admissibility of any document. A bare reading of the provision coupled with numerous Apex Court judgements indicates that a document can only be marked when the court has conclusively decided on the admissibility of the said document. Therefore, this indicates that the admissibility stage presupposes the marking stage. This principle has been reiterated in Rule 82 of Karnataka Civil Rules of Practice. Therefore, Bipin Shantilal Panchal (supra) has created a practical solution which is against the law of the land.
Lastly, this judgement has created huge hassles for the counsels arguing the case. If the plaintiff produces 50 documents and the defendant objects to these 50 documents, the trial court following the said procedure has to now mark and decide the objections at the judgment stage. The counsel for the defendant because of the said procedure has to argue on all those 50 documents which he has clearly objected to be false at the argument stage.
Plausible Solutions
To fill in the void there have to be suggestive practical measures adopted.
Firstly, the problem of remanding can be resolved by directing the trial court judges to mention a gist of the order recording the admissibility of each document when it is produced in brief paragraphs in the final judgement. This will enable fewer remand orders as the appellate court will know that the trial court has looked into the document and has applied its mind.
Secondly, the stage of admissibility has to be in line with Order XIII, CPC and Civil Rules of Practice. Therefore, any document irrespective of it being primary or secondary evidence its admissibility has to be decided the moment it is produced. A document should be marked only after the document is conclusively proven to be admissible. In pursuance with this the term ‘material on record’ should be construed as documents which are conclusively proved to be admissible and not mere marking of a document. This also creates a hassle-free environment for the trial court practitioners to not have to rely on documents to which they have serious objections. This enables a more smoothened civil trial.
Lastly, it is also important to note that the above solutions should not come in the way of the right law laid down by the Apex Court in H Siddique (supra). The documents qualifying as secondary evidence should still pass the test laid down under Section 58-60 of BSA.
Conclusion
To conclude, it is important to reflect as to how we proceed further in terms of civil trials. To have better and efficient civil trials, the stage of documents has to be decided the moment it is produced. It is important to uphold the sanctity of judgements a gist of the ruling on the admissibility of the document the moment it is produced has to be made a normal practice. In a country which revolves around commercial law and commercial practice, it’s high time we address issues faced by trial court judges and trial court practitioners. These hassles are the foundation of delayed justice which needs to be addressed. It would be apt to state that it is time for the Apex Court to reconsider the proposition laid down in Bipin Shantilal Panchal (supra) to smoothen civil trials.
This blog is written by Akash Hogade, 4th year B.A. LL.B.(Hons.) at Maharashtra National Law University, Mumbai