How to Mark a Private Document:
47. In Smt. Rekha Rana v. Smt. Ratnashree Jain [MANU/MP/0544/2005 : AIR 2006 MP 107], a Division Bench of Madhya Pradesh High Court, per R.V. Raveendra C.J., as his Lordship then was, has answered this question. A private document cannot be used in evidence unless its execution is admitted by the party against whom it is intended to be used, or it is established by proof that it is duly executed. In this context, Rekha Rana has held that a private document must be proved
i. by examining the executants of the document; or
ii. by examining a person in whose presence the signature/mark was affixed to the document; or
iii. by referring the document to a handwriting expert and examining such expert; or
iv. by examining a person acquainted with handwriting/signature of the person who is supposed to have written/signed the document; or
v. by requesting the Court to compare the signature of the executant in the document with some admitted signature of the person shown as executants; or
vi. by proving admission by the person who is said to have signed the document, that he signed it.
48. Therefore, the lessors' effort to mark the documents through the officer summoned under Order 16, Rule 15 of CPC cannot be sustained. The documents summoned may be public documents, or private documents, or a combination of both. They have come on record, but they have not yet become part of the record. So the party that summoned them must first determine which are public documents and which are private ones. As I have noted, the marking of public documents presents no problem. If the summoned documents is private, then, as held in Rekha Rana, the party must take steps to get the private document or documents marked through a proper person.
The Answers:
49. A private document cannot be marked through a person who has merely produced that document in answer to the court's summons.
50. If the objection is about the mode of proof, the party that summoned the document must ensure that it is marked through a proper person. Thus marked, the document becomes a part of the court record. But its proof is altogether a different matter. Pithily put, document marking is procedural; document proving is adjudicatory--judicial. The proof of the document-- that is, the veracity of its contents--depends, say, on the document's nature, source, the statutory presumptions it may carry with it. Even if all these aspects are satisfactory, still its relevance is yet another matter. A document emerging to be genuine still may be irrelevant for the court to adjudicate an issue before it. Thus, the proof and relevance may be tested on the touchstone of cross-examination.
IN THE HIGH COURT OF BOMBAY
Writ Petition Nos. 5016 and 5017 of 2018
Decided On: 28.06.2019
Hon'ble Judges/Coram:
Dama Seshadri Naidu, J.
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