DO PARTIES EXCHANGE WRITTEN EVIDENCE BEFORE TRIAL OR IS EVIDENCE GIVEN ORALLY?

Law Civil Law
17-Feb-2021
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Introduction

In India, evidence is the crucial element in deciding a case. A party can win a case only if it has substantial evidence to prove its allegations or disprove allegations made on it by the other party. It is even possible that a party with a genuine case that fails to produce necessary evidence loses the case, making the relevance of substantial evidence in a case more evident. Generally, the parties exchange evidence (written) or disclose evidence of their witnesses before the commencement of trial. They are supposed to provide a list of witnesses they intend to testify to the Court under the Code of Civil Procedure 1908, Ord. XVI, Rule 1. This list of witnesses must be filed in the Court by the concerned parties before the hearing's commencement. No party is allowed to produce any witness without being prior mentioned in the list of witnesses submitted to the Court. For such an exception, the party must take due permission from the Court in a written form and state the relevant reasons for no prior notification. An affidavit records the witness's evidence, and the party examines in chief of its witness. It is obligatory to provide a copy of examination-in-chief to the other party as specified under the CPC Order XVIII, R 4(1)

Duty to produce documents and other evidence pending trial.

The parties have a duty to produce all relevant and essential documents in their possession or power. Documents can be deemed relevant if it advances the case of the respective party. However, there’s an exception to producing documents known as ‘Privileged communications’, which includes legal advice or communications between the client and his legal professional advisor. When privilege is claimed, the court has the power to examine the document(s) for the confined purpose of deciding the claim to privilege. Documentary pieces of evidence that support and back the parties’ pleadings and examination-in-chief should be produced in original and authentic form and filed in court.

The court also has the power to direct any specific document to be impounded and kept in safe custody for a stipulated time on conditions that depend upon the court’s discretion. The same rules apply to material objects that are produced as evidence. Parties can also implore the court to order the other party directing it to make a discovery on oath of documents that are in possession or power of the other parties or issue a notice to produce any document referred to in the affidavit or pleading. The court also has the power to order any party to produce relevant documents in its possession or power during the suit's pendency.

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Privilege Documents under the Indian Evidence Act, 1872.

Sections 126 to 129 of the Indian Evidence Act 1872 deal with legal privileges. Section 126 explains that no barrister, attorney, pleader, or vakil (an Indian advocate) shall at any time be permitted unless with their client’s express consent, to disclose any communication made to them in the course and for their employment as such barrister, pleader, attorney or vakil, by or on behalf of their client; to state the contents or condition of any document with which they have become acquainted in the course and for their professional employment or to disclose any advice given by them to their client in the course of and for such employment. This explains that the client's explicit consent is necessary to disclose the communication between the client and his legal professional adviser.

This obligation continues even after the employment has ceased and extends to interpreters, clerks, and servants of legal advisors according to Section 127 of the Indian Evidence Act, 1872. An advocate is prohibited from breaching the obligations imposed by section 126 of the Evidence Act either directly or indirectly. Thus, the breach of lawyer-client privilege is a flagrant violation of the Bar Council Rules according to Part VI, Chapter II, section II, Rule 17 of the Bar Council of India Rules. Nevertheless, the aforementioned privilege is not available to any communication made in furtherance of an illegal purpose or concerning any fact observed after the commencement of employment, as such showing that any crime or fraud has been committed since the commencement of their employment as specified in Section 126 (1) & (2) of the Indian Evidence Act.

Section 129 of the Evidence Act protects a client from being compelled to disclose any confidential communication which had taken place between him and his legal professional adviser unless he offers himself as a witness. However, Professional communications with in-house lawyers do not enjoy the benefit of privileged communication. Also, a person who works full time for an organization for a salary cannot practice as an advocate. So, if one consults an in-house lawyer on the employment roll, He is not entitled to get legal privilege according to Chapter II, Section VII, Rule 49 of the Bar Council of India Rules.

Written evidence & Oral evidence

Under the Code of Civil Procedure, there is no provision for the simultaneous exchange of affidavits in place of examination-in-chief. Rather, the plaintiff has to file his affidavits in evidence first, and accordingly, the case is set down for recording evidence of the plaintiff’s witnesses. After the plaintiff’s evidence is recorded, the defendant filed the affidavits in lieu of examination-in-chief. In this manner, the defendant’s witnesses’ evidence is recorded. Nevertheless, parties are supposed to simultaneously exchange their list of documents and witnesses before recording evidence.

The Indian Evidence Act, 1872 govern evidence. However, the court may permit the evidence-in-chief to be led by examination in open court. This is followed by cross-examination and then re-examination; this is permitted only in specific circumstances. The Evidence Act also recognizes digital records, that is, evidence in an electronic form. The provisions of section 65B of the Evidence Act states the circumstances under which electronic evidence is admissible.

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Author: Shweta Singh