This article is written by Vishwajeet Singh Shekhawat pursuing Certificate Course in Advanced Civil Litigation from LawSikho.


In any civil trial, the burden to prove any fact generally lies on the person who asserts its existence and upon which the rights or liabilities of a party rests; until otherwise provided by any law. This requires the party to give proof as to the existence of certain facts to establish the claims or rights asserted. Therefore, it can be said that evidence is the medium of the proof, which allows the party to establish any fact in order to assert his right or avoid liability. 

The general meaning of the term ‘evidence’ can be said to mean any information which points to the validity of a belief or asserted fact. Under the Indian Evidence Act, 1872, evidence means and includes:

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  1. All statements which the court permits or requires to be made before it by witnesses, concerning matters of fact under inquiry. 
  2. All documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence.

The task of administration of justice in any State is assigned to the judiciary. For the same purpose, it is tasked with the duty to appreciate evidence given during the course of a proceeding by the party asking the court to enforce any right or liability of others. For enforcing those rights and to dispense justice, they are required to evaluate and recognize the evidence given by any party as proof of the existence of the fact he asserts. The same is based on the application of systematic rules provided under the law or based on verdicts of the High Courts or Supreme Court. ‘Appreciation of evidence’ involves the weighing of the reliability and credibility of the evidence presented.  

This article will shed light on the principles and legislative enactments involved in the appreciation of documentary evidence in a judicial inquiry, which helps in the weighing of evidence and thereby recognize them as proof of a fact in a civil matter.

Standard of proof in civil cases

The civil standard of proof is proof on a balance of probabilities. It means that if something is said to be proven on a balance of probabilities, it is more likely than not to have occurred. In other words, the likelihood of that thing or fact is more than of its non-happening. The normal rule which governs civil proceedings for the evidentiary standard is that a fact is said to be established if it is proved by a preponderance of probabilities. 

The foundation of any fact is judged by the rule of ‘Preponderance of Probability’. It will also be important to look at Section 3 of the Indian Evidence Act, 1872 which states that a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of the actual case, to act upon the supposition that it exists. Therefore, the court in any particular test applies this rule or test of preponderance of probability to find whether the fact in issue can be said to be proved.

What is documentary evidence?

A document as per the evidence act means any matter expressed or described upon any substance by means of letters, figures, or marks, or by more than one of those means intended to be used, or which may be used, for the purpose of recording that matter. Documents are further divided into public documents (Section 74) and private documents (Section 75).

Documentary evidence thus is defined under the evidence act to mean, ‘all documents including electronic records produced for the inspection of the court.’ An example of the same could be a contract produced before the court in case of a dispute for ascertaining the terms of the clause for its specific enforcement; or presentation of a sale deed as proof for the ownership of a property in a suit involving a title dispute. 

Admissibility of documentary evidence

The document which is provided by the party to be received in evidence as proof of the fact or information it asserts is to be first admitted by the court. The court for that matter relies upon the statutory provision in relation to the admission of documentary evidence.  

Requirement of stamps

An example of the same could be an insufficiently stamped document. As per Section 35 of the Indian Stamps Act, 1899 any document which is not stamped or is insufficiently stamped is not admissible as evidence; although the same can be admitted if sufficient stamp duty is paid with a penalty. Under the same section, however, unstamped or insufficiently stamped promissory note, and bill of exchange are inadmissible. Further, section 17 of the Registration Act, 1908 provides for compulsory registration of certain documents, which if not registered would not be admissible as evidence. 

Other requirements

The admission of a document would also depend upon some other factors pertinent to the document in question such as the genuineness of the document, the legal capacity, or other contractual requirements in case of a particular document. 

In case of a document being questioned on its genuineness, the court may ask for the opinion of an expert as per Section 45 of the Indian Evidence Act; or if the execution is questioned then the court may all the attesting witness present at the time of the execution, an example of which is in the case of a Will.  

What is electronic evidence?

In the case of electronic evidence, the admissibility of the same is governed by Section 65B(1) of the evidence act. It states that any information contained in an electronic record which is printed on a paper, stored, recorded, or copied in optical or magnetic media produced by a computer shall be deemed to be also a document, subject to certain conditions, and such documents shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact. The conditions for admissibility are mentioned under clause (2). They include:

  1. The computer output should be produced by a computer that has been used regularly to store or process information for any activities regularly carried on over that period by the person having lawful control over the use of the computer.  
  2. The information so derived was regularly fed into the computer in the ordinary course of activities.
  3. The computer was operating properly throughout the material part, and if was out of operation, was not such as to affect the electronic record or the accuracy of its contents.

Appreciation of documentary evidence

It would be important to note that there are prerequisites for the appreciation of evidence in civil cases. These include that in the absence of pleadings submitted at the appropriate stage within the stipulated time, any amount of evidence submitted later on will not be taken into consideration by the court. Also, the ordinary rule of law is that evidence should be given only on a plea properly raised and not in contradiction of the plea.

General principles

The decision-making process gives prime importance to the appreciation of evidence. Although there is no statutory rule which gives weightage to the evidence adduced by the party, and the importance given to evidence in judicial determination of rights and liabilities is left to the discretion of the judge. However, the same discretion is not to be exercised arbitrarily but based on legal principles and judicial precedents. Some of these principles are:

  • Evidence is to be weighed and not measured.
  • On which party the burden of proof lies.
  • The presumptions which are applicable to a document.
  • The documents which are conclusive in nature of the rights or liability they carry.
  • Documents for which additional evidence or opinion of an expert is required.

Applicable provisions

The content of a document as per Section 61 may be proved either by primary or by secondary evidence. Primary evidence is the document itself produced for the inspection of the court, whereas secondary evidence may include certified copies, copies made from the original by a mechanical process, etc. However, Section 64 provides that documents must be proved by primary evidence. In other cases where the document is not available, secondary evidence may be given as per the conditions prescribed under Section 65.  

The Indian Evidence Act, 1872 also provides for modes of proof in case of certain documents as well as the presumption to be drawn in particular matters. For instance, Section 77 provides that certified copies may be produced in proof and also states that their contents are presumed to be proved. Similarly, Section 78 provides for how official documents can be proved. Further, Section 79 to Section 90A provides for a presumption in the case of documents. 

The Supreme Court in Delhi Development Authority v Durga Chand noticed and judicially recognized the Odgers Rule (Rules for construction of Deeds and Statutes), for interpretation of the documents in India. These rules are:

  1. The meaning of the document or a particular part of it is, therefore, to be sought for in the document itself.
  2. The intention may prevail over the words used.
  3. Words are to be taken in their literal meaning.
  4. Literal meaning depends on the circumstances of the parties.
  5. Technical legal terms will have their legal meaning.

Apart from this, some particular enactments also provide for certain presumptions and rules to be followed while appreciating the evidence. Such as under Section 118 of the Negotiable Instruments Act, 1882, the court can draw presumption as to consideration date and time of acceptance, etc. 

Further, Section 91 of the Indian Evidence Act also provides for the exclusion of oral by documentary evidence especially in matters of contracts, grants, and other dispositions of property reduced to the form of documents. This in other terms means that in the case where a matter is required by law to be reduced in writing in the form of a document, no evidence shall be given in proof of the terms of such document except the document itself or secondary evidence in case where admissible as per Section 65.       

Rules of interpretation

In addition to this, some other rules as to the interpretation of documents as followed by the courts are: 

  1. Words that are similar in a contract are to be given a similar meaning.
  2. The principle of harmonious construction to be applied as far as possible while interpreting a contract and in case of conflict between two clauses, latter clauses are to be preferred to earlier ones. 
  3. If two interpretations are possible and one clause is in favour of the party who drafted the contract and the other clause against the same, the latter to be preferred. 
  4. An interpretation of a contract that makes it operative has to be preferred over the one which makes it inoperative.  


The appreciation of evidence in a trial is an important exercise undertaken by the judge for weighing the claims of the parties to the suit. It carries value for the determination of rights and liabilities of the parties by scrutinizing the facts and information asserted. The legislative enactments play an important role in that exercise of appreciating the evidence, as well as the judicial pronouncements which guide the judge in certain matters peculiar to specific cases such as the rules of interpretation in matters of executed documents. Therefore, any party asserting any fact must be aware of the modes and manner in which the same can be presented before the court so as to be able to make a strong case for the recognition and enforcement of their right.


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