Recording of Evidence: A protracted exercise, often in futility

Recording of evidence and cross-examination of witnesses is a crucial stage in a trial, where the court seeks to grasp the entirety of the dispute and the parties attempt to bring out the truth to support their respective cause. While the recording of evidence is an important stage in a trial, data suggests that it is acting as a stumbling block in the way of disposal of cases.

Statistics are reliable interpreters of maladies. Out of the 43,40,268 civil suits pending across the country, about 17,32,939 suits are still at the stage of recording of evidence. [Data obtained from National Judicial Data Gridnce]

It is noticed that after the completion of pleadings in suits, a significant amount of time is consumed for the recording of evidence. With about 40 per cent of the total pending suits frozen at the stage of evidence, the quest must be to find out the reasons behind it. Is it the lack of legal framework, convoluted interpretation by courts or plain lack of exercise of powers which has brought about this situation?

Let us first glance through the broader legal framework. Sections 56 to 58 of the Indian Evidence Act, 1872 provide for facts which need not be proved by the parties. These provisions include facts pertaining to laws, facts admitted by the opponent and those which are taken judicial note of; which are not required to be proven. Section 92 provides for the exclusion of evidence of an oral agreement, rendering an exercise of proving the contents of a contract to be entirely otiose. Section 59 of the Act provides that all facts except the contents of documents or electronic records may be proved by oral evidence. There is no material difference in the provisions of the Indian Evidence Act, 1872 and the Bhartiya Sakshya Adhiniyam, 2023 in this regard and therefore, the same broad framework would continue to govern the procedure.

From the provisions referred to above, it is discernible that oral evidence would be required to prove (i) such facts which are otherwise not clearly coming out from the documents on record, (ii) to explain the context of the documentary record and (iii) to prove the documents on record. Despite such limited scope for leading oral evidence, it is noticed that even in cases where the solitary contest is on interpretation of documents/ contracts, detailed affidavits of evidence are filed without application of mind ensuing in endless cross-examination on matters of law and/ or interpretation of contractual terms. Such recording of evidence and cross-examination is pointless from the perspective of either of the litigating parties. 

The procedure for leading oral evidence was modified and instead of leading direct evidence in courts, the concept of filing of affidavits in lieu of examination in chief was introduced by amending Order 18 Rule 4 of the Code of Civil Procedure. The principal object of this amendment was to avoid the wastage of judicial time. This was a step in the right direction. However, an unexpected consequence of this amendment was that in a large number of suits, the evidence affidavit is a verbatim copy of the plaint. Thus, the provision solely aimed at avoiding the wastage of time in recording examination-in-chief has led to a situation where every fact pleaded and, on several occasions, legal contentions raised in the plaint are reproduced in the evidence affidavit, entailing cross-examination on all those facts and submissions. The question that arises is - can such affidavits be treated to be evidence at all?

On the issue of ‘copy-pasting’ the plaint in the evidence affidavit, the Hon’ble Bombay High Court in Harish Loyalka v. Dilip Nevada has held as under:

“In matter after matter, I find that so-called ‘evidence affidavits’ are nothing but verbatim reproductions of pleadings, replete with submissions and arguments (which should have no place in pleadings either) and very often even entire prayers. Now if this matter is not kept out of the scope of a cross-examination, the consequences are unimaginable. A cross-examination would sprawl over several hundred pages and several thousand questions. This does happen and it happens repeatedly. I do not read Ameer Trading or any of the decisions cited to suggest that material that is wholly inadmissible and not permitted by the Evidence Act should be allowed to enter the record merely because Order Rule 4 of the CPC requires examination-in-chief to be on affidavit.”

Thereafter, the Hon’ble Delhi High Court while deciding the case of Brij Prakash Gupta v. Ashwini Kumar placed reliance on the judgment in the case of Harish Loyalka (Supra) and held as under:

“In daily practice, it is noticed that the affidavits in evidence are a ‘cut and paste’ from the plaint, which is not how they are supposed to be. The affidavit should contain facts which are to the personal knowledge of the deponent and the same cannot be a verbatim copy of the plaint. The affidavit in evidence can factually expand on a plea taken in the plaint, it can also support factual assertions made in the plaint but it cannot contradict or state facts which cannot be derived from the plaint. The practice of filing affidavits in evidence which replicate the plaint is incorrect and ought not to be permitted by Courts.”

If such affidavits are rejected/ redacted (to the extent that they are non-compliant) by the courts, the trial period could be significantly shortened. Unless the power to reject/ redact such affidavits is exercised by the courts, the pendency would reach newer peaks.

It is worth noting that with the introduction of the Commercial Courts Act, 2015, amendments were made in Order 19 of the CPC to give teeth to the courts to handle such situations. The newly added Rule 4 empowers the court to issue directions to regulate the evidence by pointing out issues on which it requires evidence; thereby weeding out the issues which are not required to be addressed in the affidavits. It further empowers the courts to exclude evidence, which would otherwise be filed by the parties. The newly added Rule 5 empowers the courts to (i) order the redaction of such portions of the affidavit of examination-in-chief as do not, in its view, constitute evidence or (ii) return or reject an affidavit of examination-in-chief as not constituting admissible evidence. The newly added Rule 6(b) specifically empowers the courts to strike out the affidavit or such parts of the affidavit if it is a mere reproduction of the pleadings or contains legal grounds.

Very clearly, the provisions of the law are in sync with the judicial pronouncements on the issue. Despite this, the non-utilization of powers by courts in these situations is startling.

It is a disturbing trend that even in arbitrations, where Section 19 of the Arbitration and Conciliation Act, 1996 specifically provides that the provisions of the Evidence Act and CPC do not strictly apply, where the solitary dispute is on the interpretation of a contract, parties tend to file detailed evidence affidavits. It is observed that in a large number of arbitrations, the entire one-year period (post-completion of pleadings) is utilized only for recording of evidence and the stage for making oral arguments does not even reach. 

With growing criticism of courts over vacations, pendency, and delay in the judicial process, one would hope that the courts take a proactive approach and at the very least contain such time leakages by refusing to take affidavits of evidence on record containing cyclostyle copying of pleadings or containing legal submissions to avoid a prolonged trial on issues, which are otherwise beyond the realm of oral evidence.

About the author: Kunal J Vyas is a Partner at Gandhi Law Associates.