The Evidentiary Conundrum of Documents Marked by Consent in Indian Civil Procedure: A Critical Analysis

Introduction

In the adversarial system of justice prevalent in India, the proof of facts relies heavily on evidence, with documentary evidence playing a pivotal role. The procedure for adducing documentary evidence is governed by the Code of Civil Procedure, 1908 (CPC) and the Indian Evidence Act, 1872. A common practice encountered in civil trials is the 'marking of documents by consent' of the parties. This practice aims to expedite trial proceedings by obviating the need for formal proof of documents where parties agree. However, the precise legal implication of such consent – specifically, whether it extends merely to waiving formal proof of execution and genuineness, or also tantamounts to an admission of the truth of the contents of the document – has been a subject of considerable judicial deliberation. This article seeks to critically analyze the jurisprudential landscape surrounding documents marked by consent in Indian civil litigation, examining the scope and limitations of such consent and its impact on the evidentiary value of the documents.

Procedural Landscape of Documentary Evidence in India

The CPC lays down the procedural framework for the production and admission of documentary evidence. Order VII Rule 14 and Order VIII Rule 1A mandate the plaintiff and defendant respectively to produce documents upon which they rely along with their pleadings, or state in whose possession they are (M/S. J. M. Constructions v. M/S. Shamrock Impex Pvt. Ltd. And Ors., Bombay High Court, 2019). Order XIII Rule 1 of the CPC requires parties to produce all original documentary evidence at or before the settlement of issues. Order XIII Rule 4 prescribes the particulars to be endorsed on documents admitted in evidence. The Indian Evidence Act, 1872, particularly Chapters V and VI, elaborates on the manner of proving documents, distinguishing between primary and secondary evidence, and stipulating rules for proving execution and contents. The Supreme Court in Life Insurance Corporation Of India And Another v. Ram Pal Singh Bisen (2010 SCC 4 491) underscored the necessity of adhering to procedural mandates of the CPC and the Evidence Act regarding the admission and proof of documents. The integrity and authenticity of documents are paramount, as highlighted in cases like Sait Tarajee Khimchand And Others v. Yelamarti Satyam Alias Satteyya And Others (1972 SCC 4 562), where tampering with a mortgage bond had severe consequences.

The Doctrine of 'Marking Documents by Consent'

Defining Consent in Evidentiary Practice

Marking a document by consent signifies an agreement between the litigating parties to allow a document to be taken on record and form part of the evidence without insisting on the strict modes of proof otherwise required by the Evidence Act. The primary objective is to save judicial time and prevent undue delay by avoiding protracted examination of witnesses solely for proving the formal aspects of a document, such as its execution or handwriting, when these are not genuinely in dispute. This practice is rooted in the principle that parties can waive procedural requirements intended for their benefit.

The Crucial Dichotomy: Proof of Execution versus Truth of Contents

The central interpretative challenge with documents marked by consent lies in determining the extent of the waiver. Does the consent merely dispense with the need to call the author or an attesting witness to prove that the document is what it purports to be (i.e., proof of its existence, authenticity, and execution)? Or does it go further, implying an admission by the consenting party that the statements or recitals within the document are true and accurate? This distinction is critical because the former relates to the admissibility of the document, while the latter pertains to its probative value concerning the facts stated therein.

Judicial Interpretation and the Scope of Consent

The Predominant View: Consent Waives Formal Proof, Not an Admission of Truth

A consistent line of judicial pronouncements, particularly from the Madras High Court, has established that consenting to the marking of a document primarily implies a waiver of the requirement of its formal proof, and not an automatic admission of the truthfulness of its contents. The locus classicus on this point is R.M.Y.R.M Palaniappa Chettiar And Others v. The Bombay Life Assurance Co. Ltd. (1947 SCC ONLINE MAD 186), where the court held:

"Permitting a document to be marked by consent only means that the party consenting is willing to waive his right to have the document in question proved... Agreeing to the document being marked by consent certainly did not mean that the plaintiff accepted the correctness of every statement made by [the author] in [the documents]."

This principle has been reiterated in numerous subsequent decisions by the Madras High Court, including Karuppanna Thevar (Died) And Others v. Rajagopala Thevar And Others. (1974 SCC ONLINE MAD 20), Manickathammal v. Nallasami Pillai (Madras High Court, 1976), A.V.S Perumal v. Vadivelu Asari (1986 SCC ONLINE MAD 2), Special Tahsildar (Land Acquisition) v. G. Rajendra Bose (Madras High Court, 1995), and D.DHANALAKSHMI v. V.MAHESHWARI (Madras High Court, 2023). The court in Hawva Nachiyar Another v. Balkish Beevi Ammal Others (Madras High Court, 2015) clarified that such consent indeed waives formal proof of execution, meaning the document is taken as genuinely executed by the purported author. However, the truth of the assertions within the document remains a matter for evaluation based on all evidence on record, and the consenting party retains the right to challenge or contradict those contents through cross-examination or other evidence.

The Supreme Court's observations in Oriental Insurance Company Limited v. Premlata Shukla And Others (2009 SCC CRI 1 204) lend support to this view. While citing Hukam Singh v. Udham Kaur (1969) for the proposition that parties cannot later challenge the admissibility of evidence they initially consented to present, the Court also referred to Narbada Devi Gupta v. Birendra Kumar Jaiswal (2003 SCC 8 745) for the principle that "mere designation of a document as an exhibit does not automatically authenticate its contents. Evidence must be specifically proven." This implies that consent to marking addresses admissibility and formal proof, but the contents still require substantiation or must remain uncontroverted to be relied upon for their truth.

Circumstances Suggesting Broader Implications of Consent

Certain Supreme Court decisions have been interpreted by some to suggest that consent to marking might, in specific contexts, carry more weight regarding the contents. In Narbada Devi Gupta v. Birendra Kumar Jaiswal And Another (2003 SCC 8 745), the Court observed, relying on P.C. Purushothama Reddiar v. S. Perumal (1972 SCC 1 9), that "once documents are admitted into evidence, their contents are considered proven unless contested." In Narbada Devi Gupta, rent receipts were marked as exhibits, and the plaintiff did not contest the authenticity of his signatures on them nor effectively challenge their contents. The Court held that the act of marking these receipts as exhibits, coupled with the failure to challenge their contents or authenticity, "effectively accepted their content."

These pronouncements do not necessarily contradict the general rule laid down by the Madras High Court. Instead, they highlight situations where the failure to contest the contents of a document, once it is admitted (whether by consent or without objection), can lead to the court relying on those contents. The emphasis is on the phrase "unless contested." If a document is marked by consent, and the consenting party subsequently fails to challenge, contradict, or offer evidence to disprove its contents, the court may be justified in accepting those contents as true, not merely because of the initial consent to marking, but due to the overall conduct of the parties and the state of the evidence. The nature of the document itself (e.g., a public document as in P.C. Purushothama Reddiar, or an admission against interest) might also influence the court's approach.

Effect of Non-Objection and Timeliness

The Supreme Court in R.V.E Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P Temple And Another (2003 SCC 8 752) emphasized that objections to the admissibility of a document (e.g., on grounds of improper stamping or registration) must be raised when the document is tendered in evidence. If not raised promptly, such objections are deemed waived. While distinct from express consent, a failure to object can have similar consequences regarding the formal admission of a document. However, as established, this waiver generally pertains to the mode of proof or formal admissibility, not necessarily to the truth of the contents, which can still be challenged unless the waiver explicitly covers it or is implied by subsequent conduct.

Procedural Implications and Best Practices

Clarity in Expressing and Recording Consent

To avoid ambiguity, it is imperative for legal practitioners to be precise when giving or accepting consent for marking documents. If the consent is intended to extend to the truth of the contents, this should be explicitly stated and recorded by the court. Conversely, if consent is limited to waiving formal proof, this limitation should also be made clear. The onus is on the party relying on the document to ensure the scope of consent is unambiguous if they wish to argue that the contents stand admitted.

Court's Role in Ascertaining Consent

Trial courts play a crucial role in ensuring clarity. When a document is sought to be marked by consent, the court should, ideally, ascertain from the parties the precise scope of such consent. This proactive approach can prevent future disputes over the evidentiary value attributed to the document based on the consent given.

Handling Objections and Consent: The Bipin Shantilal Panchal Approach

In Bipin Shantilal Panchal v. State Of Gujarat And Another (2001 SCC CRI 417), the Supreme Court, in the context of criminal trials but with relevance to civil trials aiming for expedition, suggested a procedure where if an objection is raised to the admissibility of evidence, the court should note the objection and mark the document for identification, with the question of admissibility to be decided at a later stage. This contrasts with marking by consent, where the objection regarding formal proof is expressly waived, thereby allowing the document to be marked as an exhibit directly. However, the spirit of expediting trials is common to both scenarios.

Consent Regarding Secondary Evidence

When a photocopy or other secondary evidence is marked by consent, such consent typically waives objections to its admissibility as secondary evidence (i.e., the conditions under Section 65 of the Evidence Act need not be separately proved) and also dispenses with its formal proof. However, as per the general rule, this does not automatically mean the contents of the photocopy are admitted as true (Shalimar Chemical Works Limited v. Surendra Oil And Dal Mills (Refineries) And Others, 2010 SCC 8 423). The principles discussed in Kaliya v. State Of Madhya Pradesh (2013 SCC 10 758) regarding the foundation for secondary evidence would be considered waived by such consent.

Consent Decrees and Comprehensive Settlements: A Broader Perspective

The power of consent in legal proceedings is most profoundly seen in consent decrees or comprehensive settlement terms. As illustrated in Dillip J. Giyanani Petitioner(S) v. State Of Maharashtra And Ors. (S) (Supreme Court Of India, 2015) and Hironmoy Sen And Another (s) v. State Of West Bengal And Another (s). (Supreme Court Of India, 2021), parties can, by mutual agreement, settle all disputes, including admitting the validity and contents of specific documents (e.g., a Will). Such consent terms, when incorporated into a court order, become binding and enforceable (Ravindra Narottamdas Merchant v. Niranjan Narottamdas Marchant, Bombay High Court, 2012). This broader application of consent underscores its significance in achieving finality in litigation, extending beyond the mere marking of documents during trial.

Statutory Recognition: Section 294 CrPC as an Analogue

In criminal jurisprudence, Section 294 of the Code of Criminal Procedure, 1973 (CrPC) provides a mechanism analogous to marking documents by consent. It allows for the admission of documents without formal proof if their genuineness is not disputed by the opposing party after a list of documents is furnished. If the genuineness is not disputed, such documents "may be read in evidence" (Arumugam v. State By Sub Inspector Of Police, Madras High Court, 2001). Cases like Boraiah Shekar v. State By Ramanagaram Police (2002 SCC ONLINE KAR 689) have held that where a post-mortem report is marked by consent and its genuineness is not disputed, it becomes admissible evidence. This statutory provision reflects a legislative intent to expedite trials by dispensing with formal proof upon non-dispute, akin to consent in civil cases.

Conclusion

The practice of marking documents by consent is a valuable tool for enhancing the efficiency of civil trials in India. However, its evidentiary implications require careful understanding. The predominant judicial view, primarily articulated by the Madras High Court and supported by nuanced interpretations of Supreme Court decisions, is that such consent generally operates to waive the requirement of formal proof of the document's execution and genuineness, but does not, per se, amount to an admission of the truth of its contents. The truth of the contents remains a matter for proof or inference based on the entire evidentiary record, including any failure by the consenting party to subsequently challenge or rebut those contents.

For the salutary purpose of this practice to be fully realized without causing injustice, it is essential for legal practitioners to be explicit about the scope of consent offered or accepted, and for trial courts to ensure that such consent is clearly recorded. While expediency is desirable, it must not overshadow the fundamental principles of fair trial and the accurate ascertainment of truth. A clear understanding and careful application of the doctrine of marking documents by consent will serve to balance these crucial objectives in the administration of civil justice in India.