Failure to object to a document’s mode of proof at trial bars challenging it on appeal.

The respondent-plaintiff instituted a suit for specific performance of an alleged oral agreement for sale of the scheduled property.

According to the plaintiff, the parties agreed upon a consideration of ₹4,00,000, of which ₹3,50,000 was allegedly paid in instalments, with the balance ₹50,000 payable at the time of execution and registration of the sale deed.

The plaintiff claimed that possession had been delivered to him and that he had thereafter paid municipal taxes and commenced construction.

The appellant-defendant denied the oral agreement, receipt of money, delivery of possession, and the exchange of letters between the parties’ advocates.

The Trial Court decreed the suit, substantially relying on certified copies of letters exchanged through the advocates.

The defendant appealed, contending that the letters’ contents and execution had not been duly proved because the advocates who allegedly authored them were not examined.

The plaintiff had also instituted an earlier suit concerning the same property, which had been dismissed and was stated to be pending in appeal.

1. Whether the certified copies of the letters exchanged through the parties’ advocates could be relied upon when they were marked as exhibits without objection, although the original letters and the advocates who authored them were not produced or examined.

2. Whether the plaintiff established the alleged oral agreement for sale and discharged the burden necessary for a decree of specific performance on the basis of his oral testimony and the exhibited correspondence.

3. Whether the appellant could challenge, at the appellate stage, the mode of proof of the letters after failing to object when they were tendered and marked as exhibits at trial.

The Court applied the principles governing proof of documentary contents under Sections 61–66 of the Indian Evidence Act, 1872, including the general rule that mere marking of a document as an exhibit does not, by itself, prove its contents, as recognised in Narbada Devi Gupta v. Birendra Kumar Jaiswal and Kalyan Singh v. Chhoti.

However, under R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Gopal Das v. Thakurji, an objection concerning the mode of proof must ordinarily be taken when the document is tendered; if no such objection is made and the document is admitted and marked, the objection cannot ordinarily be raised later in appeal.

The Court also relied on A.E.G. Carapiet v. A.Y. Derderian for the principle that failure to put an essential and material aspect of a witness’s testimony to him in cross-examination may justify treating that testimony as undisputed.

The civil burden is proof on a balance or preponderance of probabilities, rather than proof beyond reasonable doubt.

Order VIII Rule 3 of the Code of Civil Procedure was considered in relation to the requirement of specific and categorical denials.

The Court acknowledged that the plaintiff had not produced independent witnesses to prove the alleged payments, had not specified the dates or number of instalments, and had relied principally on his own testimony and the correspondence.

Nevertheless, the certified copies of the letters were tendered and marked as exhibits without objection, and the defendant did not properly and specifically controvert their execution at trial.

The defendant also declined to examine the advocate who allegedly issued the letter on his behalf, despite the advocate being known to him.

Applying R.V.E. Venkatachala Gounder and Gopal Das, the Court held that any objection directed merely to the mode of proving the letters had been waived by failure to raise it when the documents were admitted.

Further, applying A.E.G. Carapiet, the defendant’s failure to confront the relevant evidence effectively in cross-examination, coupled with his refusal to call the advocate, supported an inference favourable to the plaintiff.

On the civil standard of preponderance of probabilities, the exhibited correspondence sufficiently corroborated the plaintiff’s case and shifted the evidentiary burden to the defendant, which he failed to discharge.

The plaintiff was found to have discharged his burden of establishing the oral agreement on a preponderance of probabilities.

The appeal was dismissed, and the Trial Court’s judgment and decree for specific performance dated 30 September 2013 were affirmed.

The appellant was granted liberty to withdraw the amount, together with accrued interest, lying deposited with the Trial Court pursuant to the earlier order dated 13 July 2016.

No order was made as to costs.