Bombay High Court
Mohammed Abdul Wahid S/O Dr. ... vs Smt. Nilofer Wd/O Dr. Mohammad ... on 9 February, 2021
Bench: S.B. Shukre, Avinash G. Gharote
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.7717/2019
PETITIONER : Mohammed Abdul Wahid S/o Late
Dr. Mohammed Abdul Aziz, aged 54 years,
Occ. Business, R/o Behind Power House,
Hansapuri, Nagpur.
...VERSUS...
RESPONDENTS : 1. Smt. Nilofer Wd/o Dr. Mohammad
Abdul Salim, Aged about 50, Occ.
Household, R/o B-4 Anmol Apartments,
Mecosabagh, Nagpur - 440004.
2. Smt. Suriyya Jabeen wd/o Siddique
Ali Khan Patel, aged about 56 years,
Occ. Household, R/o Dr. Aziz Manzil,
Near Jama Masjid, Mominpura, Nagpur.
WITH
WRIT PETITION NO.6931/2019
PETITIONERS : 1. Sau. Kantabai w/o Narendra Kumbhare,
(Original Aged about 55 years, Occupation :
Defendant No.1&2) Cultivator & household.
2. Narendra s/o Kashinath Kumbhare,
Aged about 61 years, Occupation : Service
Both resident of Near Lahri Ashram, Chandani
Chowk, Bhandara, Tahsil & District
Bhandara.
...VERSUS...
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2
RESPONDENTS : 1. Sudhir s/o Nathu Titarmare,
(Original aged about 50 years, Cultivator.
Plaintiffs)
2. Rekha w/o Govardhan Borkar,
aged about 54 years, Cultivator.
3. Chhaya w/o Haridas Ishwarkar
aged about 47 years, Cultivator.
Nos.1 to 3 R/o Pimpalgaon (Hardoli)
Tahsil Tumsar, District Bhandara.
(Original 4. Arun s/o Nathu Titarmare,
Defendant No.3) aged about 53 years, Occupation : Cultivator,
Resident of Bela, Tahsil & District Bhandara.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - ---- - - - - - - - - - - - - - - - - - - -
Office Notes, Office Memoranda of Coram, Court's or Judge's orders
Appearances, Court's orders or directions
and Registrar's orders
- - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ---- - -
Mr. Masood Shareef, Advocate for petitioner in W.P. No.7717/2019
Mr. R.S. Sundaram, Advocate for respondent no.1 in W.P. No.7717/2019
Ms. Poonam Moon, Advocate for respondent no.2 in W.P. No.7717/2019
Mr. V.D. Muley, Advocate for petitioners in W.P. No.6931/2019
Mr. N.B. Kalwaghe, Advocate for respondent nos.1 to 3 in W.P. No.6931/2019
CORAM : SUNIL B. SHUKRE AND
AVINASH G. GHAROTE, JJ.
Order reserved on : 05/01/2021
Order pronounced on : 09/02/2021
O R D E R : (PER : AVINASH G. GHAROTE, J.)
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1. The learned Single Judge of this Court, noticing a
difference of view in two judgments of learned Single Judges of this
Court, one being Vinayak M. Dessai Vs. Ulhas N. Naik and others,
2018 (2) Mh.L.J. 348 and the other being Purushottam s/o Shankar
Ghodgaonkar Vs. Gajanan s/o Shankar Ghodgaonkar and others
2012 (6) Mh.L.J. 648, had framed the following questions, which
have been referred to the Division Bench for an answer :-
(1) Whether a party to a suit i.e. plaintiff/or
defendant is also a witness and the provisions of
Order VII Rule 14, Order VIII Rule 1-A (4) (a) and
Order XIII Rule 1 (3) (a) of the CPC need to be
interpreted and applied by equating "party" with a
"witness" ?
(2) Whether documents can be directly
produced at the stage of cross-examination of a party
and/or a witness to confront him/her without seeking
any prior leave of the Court under Order VII Rule 14
(4), Order VIII Rules 1 (A) (4) (a) and Order XIII
Rule 1 (3) (a) of the Civil Procedure Code ?
(3) Whether the observations made in the
judgment in the cases of Purushottam s/o Shankar
Ghodegaonkar (supra) and Vinayak M. Dessai (supra),
to the effect that permitting production of documents
directly at the stage of cross-examination of a witness
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and/or a party to a suit would amount to springing a
surprise and hence, it is impermissible, are correct in
the light of the plain reading of the aforesaid provisions
and if accepted it would lead to whittling down the
effectiveness of cross-examination of a witness and/or
a party ?
Looking to the nature of the controversy the mention of
Order VII Rule 14 in question no.1 would in fact refer to Order VII
Rule 14 (4) of C.P.C.
2. Mr. Masood Shareef, learned Counsel for the petitioner
in Writ Petition No.7717 of 2019, Mohd. Abdul Wahid Vs. Smt.
Nilofer in respect of the first question, has invited our attention to
paras 14 to 18 of the referral order, and submits that a party in all
cases, has to be equated with a witness. He invites our attention to
the provisions of Order VII Rule 14, Order VIII Rule 1-A (4) (a) and
Order XIII Rule 3 (a) of the Code of Civil Procedure to contend that
a conjoint reading of the above provisions, would point out, that the
plaintiff, is entitled to step into the witness box in support of his
claim as laid out in the plaint and to have himself cross-examined by
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the other side, which clearly indicates that the plaintiff(s) as well as
the defendant(s), as a party to the lis, is equated with a witness.
3. He further invites our attention to the provisions of
Order XVI Rule 1 and also to Order XVI Rule 21 and submits that
when the provisions of Order XVI, as indicated by Rule 21 therein,
apply to parties summoned also, the same is a further indication of
the party to the lis being equated with a witness.
4. He further places reliance upon Order XVIII Rules 3 (A),
4, 5 and 7 to submit that the Rules for recording of evidence also do
not make any distinction between a party and a witness; there are
no separate rules for a party and a witness, and therefore a party has
to be equated with a witness. Relying upon the provisions of
Order XVIII Rule 17 which contains the power of the Court to recall
and examine witness, he submits that the power is also used to recall
the party also, which again is an instance of the Code treating the
party as equal to the witness. He further places reliance upon the
provisions of Order XVIII Rule 19, the power of the Court to get
statements recorded on commission and contends that this power is
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exercisable in respect of the party also, in addition to being available
for a witness, which again would indicate that the party is equated
with the witness by the Court.
5. Mr. Shareef, learned Counsel for the petitioner, by
inviting our attention, to the provisions of Section 118 of the
Evidence Act, contends that there is no distinction made between a
party and a witness in the matter of being entitled to testify. Further
placing reliance on Section 120 of the Evidence Act, he submits, that
the word "parties" have been held to be competent witnesses. Then
Sections 137, 138, 143 to 146 and Section 155 to 159 of the
Evidence Act are pressed into service, to contend that these too also
do not make any distinction between a party and a witness.
6. Mr. Shareef, learned Counsel therefore submits that
neither in the Code of Civil Procedure, nor in the Evidence Act, any
distinction has been made between a party and a witness and that
being so, the Rules which are applicable to a witness, would equally
be applicable to a party. Heavy reliance, is placed upon Ibrahim
Farukmiya Karajgi Vs. Kasimkhan and another, 2002 SCC OnLine
Kar 556.
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7. Mr. Shareef, learned Counsel therefore submits that the
provisions of Order VII Rule 14 (4), Order VIII Rule 1-A (4) and
Order XIII Rule 1 (2) (a) of the Code of Civil Procedure ought to be
construed in a harmonious manner and doing so, would lead to an
inescapable conclusion that there was no distinction between a party
and a witness. He submits that the above legal position was not
brought to the notice of the Court in Purushottam Ghodgaonkar
(supra), which according to him does not lay down the correct law.
He therefore submits that question no.1 ought to be answered in
affirmative.
8. On question no.2, Mr. Shareef, learned Counsel for the
petitioner submits that Vinayak Dessai (supra) is also not a good law,
as the same follows Purushottam Ghodgaonkar (supra) and
Laxmikant Sinal Lotlekar and another Vs. Raghuvir Sinal Lotlekar
and another, 1984 Mh.L.J. 938, which does not have any
applicability to the present facts and circumstances as the same was
rendered in the background of unamended provisions of the C.P.C.
and thus has no application while considering the amended
provisions of C.P.C. He further submits that Vinayak Dessai (supra)
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does not consider the earlier judgment of this Court in Upper India
Couper Paper Mills Co. Ltd. Vs. M/s. Mangaldas and Sons, 2004 (4)
Mh.L.J. 992. He submits that when the documents are to be
produced for cross-examination of witnesses (including party to the
suit), no permission was necessary for production of the documents,
in support of which reliance is placed on para 11 of Subash Chander
Vs. Shri Bhagwan Yadav [CM(M) No.171 of 2009, decided on
25/11/2009 by the High Court of Delhi]; Miss T. M. Mohana d/o
Muthukumaraswamy Vs. V. Kannan, AIR 1984 Madras 14 and para
25 of Ramdev Food Products Pvt. Ltd. Vs. Arvindbhai Rambhai Patel
[Spl. Civil Application No.4826 of 2015, decided on 4/5/2015 by the
High Court of Gujarat and Ahemadabad]. He submits that since the
witness is equated with a party, the Rules framed in the Code of Civil
Procedure, namely Order VII Rule 14 (4), Order VIII Rule 1-A (4)
(a) and Order XIII Rule 1 (3) (a), in so far as they apply to witnesses
would also apply to the party and therefore, there would be no need
for seeking any leave of the Court, even when the document is
sought to be confronted to a party, who is in the witness box, as a
witness. He submits that the above provisions, need to be
interpreted and applied by equating party with a witness. He
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therefore submits that question no.2, has also to be answered in the
affirmative.
9. In so far as question no.3 is concerned, it is submitted
that the observations made in Purushottam Ghodgaonkar (supra)
and Vinayak M. Dessai (supra) to the effect that permitting
production of documents directly at the stage of cross-examination
of a witness, in this case a party, would amount to springing a
surprise and therefore impermissible was not the correct law.
10. In support of his arguments, Mr. Shareef, learned
Counsel, in addition to those stated above also places reliance upon
F.D.C. Limited, Mumbai Vs. Federation of Medical Representatives
Association India and others, 2003(3) Mh.L.J. 327.
11. Mr. N.B. Kalwaghe, learned Counsel for the respondent
nos.1 to 3, in W.P. No.6931 of 2019, supports the plea advanced by
Mr. Shareef, learned Counsel for the petitioner in W.P.
No.7717/2019. He further submits that even the Evidence Act, does
not make any distinction between a party and a witness and the
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rules of evidence as laid down therein, apply equally to both without
any distinction, which would indicate that the party and witnesses
are on an equal footing. He places reliance upon the following
judgments :-
(a) Purushottam s/o Shankar Ghodgaonkar Vs.
Gajanan s/o Shankar Ghodgaonkar and others,
2012(6) Mh.L.J. 648.
(b) Union of India and another Vs. B. D.
Sharma, AIR 1989 NOC 183 (J & K).
(c) Vinayak M. Dessai Vs. Ulhas N. Naik and
others, 2018 (2) Mh. L. J. 348.
(d) Laxmikant Sinal Lotlekar and another Vs.
Raghuvir Sinal Lotlekar and another, 1984
Mh.L.J. 938.
(e) Miss. T. M. Mohana d/o
Muthukumaraswamy Vs. V. Kannan, AIR 1984
MAD 14.
(f) Upper India Couper Paper Mills Co. Ltd.
Vs. M/s Mangaldas and Sons, 2004(4) Mh.L.J.
992.
(g) F.D.C. Limited, Mumbai Vs. Federation of
Medical Representatives Association India and
others, 2003(3) Mh.L.J. 327.
(h) Ibrahim Farukmiya Karajgi Vs. Kasimkhan
and another, 2002 SCC OnLine Kar 556.
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(i) Bank of India, Goa Vs. M/s Noronha Dias
Enterprises and others, 1996(1) Mh.L.J. 961.
(j) Havovi Kersi Sethna Vs. Kersi Gustad
Sethna, 2011 (3) Mh.L.J. 564.
(k) Salem Advocate Bar Association, Tamil
Nadu Vs. Union of India, AIR 2005 Supreme
Court 3353.
Judgment at serial nos. a, c to h, have also been relied
upon by Mr. Masood Shareef, learned counsel for the petitioners in
W.P. No.7717/2019.
12. Mr. Sundaram, learned Counsel for respondent no.1
opposing the submissions of Mr. Shareef, learned Counsel for the
petitioner contends that there is a marked and distinct difference
between a party and a witness and they cannot be equated. He
submits that this difference is borne out by a perusal of Order I
Rules 1 and 3 of C.P.C., which define who are the plaintiff and
defendants and thus parties to the suit ; Order I Rule 6 which refers
to joinder of parties; Order I Rule 9 which refers to misjoinder and
nonjoinder of parties; Order I Rule 13 which refers of objections
raised on account of misjoinder and nonjoinder of parties. He further
invites our attention to Order II Rule 2, Order VI Rule 2, Order IX
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Rule 1, Order X, Order XI Rule 1, Order XII Rule 1, Order XIV Rule 1,
Order XV Rules 1 and 2 and contends that all these provisions refer
to parties as being the plaintiff and the defendant only. He further
places reliance on the provisions of Order XVI Rule 1, which refers to
list of witnesses to be produced by the parties after settlement of
issues to submit that the same does not include the plaintiff or the
defendant, who are the parties to the suit. He also relies upon
Order XVI Rule 10 which mandates that a witness can be compelled
to appear as opposed to the position that there cannot be any
compulsion for the plaintiff or defendant, who are parties to the suit
to appear. He further relies upon Order XVI Rule 21, where a
plaintiff or defendant is summoned as a witness of either side.
Further reliance is placed upon Order XVIII Rule 1, which postulates
right to begin, which in the context of Rule 2 of Order XVIII, would
only indicate that the party enters the witness box to prove the
statements of facts stated in the plaint and to produce evidence,
whereas the witness enters the witness box in support of the case of
a party. He therefore submits that all the above provisions of the
Code of Civil Procedure itself categorically indicate a difference
between a party and a witness.
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13. He further relies upon the provisions of the Evidence
Act to submit that the term 'witness' is used in the context of a
person deposing in favour of a party to the lis and not for himself.
He further submits that a party in a given circumstance can prove his
case by dislodging the evidence of the defence, even without
entering the witness box, all of which factors further substantiate the
difference between a party and a witness.
14. In respect of question no.2 he submits that a document
can only be produced at the time of cross-examination of witness,
considering the provisions of Order VII Rule 14 (4) Order VIII
Rule 1-A (4) and Order XIII Rule 1 (3 A) of C.P.C, and for the cross-
examination of the party.
15. In respect of question no.3, he submits that the
judgments in Purushottam Ghodgaonkar (supra) and Vinayak M.
Dessai (supra) spell out the correct law as the provisions of
Order VII Rule 14 (4), Order VIII Rule 1 -A (4) and Order XIII Rule 1
(3) (a) of C.P.C. are clear and unambiguous and are intended to
apply only to witnesses and not to a party and the entire purpose of
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confronting the witness with the document during the purpose of
cross-examination, would be defeated, if leave of the Court is to be
sought at such a juncture, and such an interpretation as is being
sought to be put by his opponents, would result in whittling down
the effectiveness of cross-examination of a witness.
16. Advocate Mr. R.S. Sundaram, learned Counsel for
respondent no.1 in W.P. No.7717/2019 relied upon the following
judgments :-
(i) Subramanian Swamy Vs. Election
Commission of India through its Secretary, AIR
2009 SC 110.
(ii) Union of India (UOI) Vs. Elphinstone Spinning
and Weaving Co. Ltd and Ors. AIR 2001 SC 724.
(iii) Udayan Chinubhai Vs. R.C. Bali, AIR 1977 SC
2319.
(iv) Nelson Motis Vs. Union of India (UOI) and
Ors., AIR 1992 SC 1981.
(v) Union of India and Ors. Vs. B.D. Sharma, 1988
(2) Civil CC.
17. Advocate Mr. V.D. Muley, learned Counsel for the
petitioner in W.P. No.6931/2019 relied upon Union of India and Anr.
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Vs. B.D. Sharma, AIR 1989 NOC 183 (J & K), which is also relied
upon by Mr. Kalwaghe, learned Counsel for the respondent nos.1
to 3 in W.P. No.6931 of 2019.
18. At the outset, it is necessary to note, certain principles
of statutory interpretation, based upon which the meaning as is
being assigned to the provisions of the C.P.C., by the contesting
parties herein, has to be determined. Mr. Sundaram, learned Counsel
for the respondent no.1 in Writ Petition No.7717/2019 has in this
regard, rightly placed reliance upon the propositions as enunciated
by the Hon'ble Apex Court in Subramanian Swamy (supra) - to the
effect that a statute must be read as a whole in its context, so that no
absurdity creeps in; Elphinstone Spinning and Weaving Company
(supra) which holds that the duty of the judges is to expound and
not to legislate as a fundamental rule, though there is no doubt a
marginal area in which the Courts mould or creatively interpret
legislation and they are thus finishers, refiners and polishers of
legislation, which comes to them in a state requiring varying degrees
of further processing, but by no stretch of imagination a Judge is
entitled to add something more than that is there in the statute by
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way of a supposed intention of the legislature. It is therefore a
cardinal principle of construction of statute that the true or legal
meaning of an enactment is derived by considering the meaning of
the words used in the enactment, in the light of any discernible
purpose or object which comprehends the mischief and is remedy to
which the enactment is directed; Udayan Chinubhai (supra) , which
holds that in interpreting the provisions of a statute the courts have
to give effect to the actual words used whether couched in the
positive or in the negative. It is not permissible to alter the cohesive
underlying thought process of the legislature by reading in positive
sense what has been set out in negative terms. The Courts will try to
discover the real intent by keeping the diction of the statute intact.
This is another cardinal rule or construction; Nelson Motis (supra),
which holds that :-
"8. The language of sub-rule (4) of Rule 10 is absolutely
clear and does not permit any artificial rule of
interpretation to be applied. It is well established that if
the words of a statute are clear and free from any
vagueness and are, therefore, reasonably susceptible to
only one meaning, it must be construed by giving effect to
that meaning, irrespective of consequences. The language
of the sub-rule here is precise and unambiguous and,
therefore, has to be understood in the natural and ordinary
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sense. As was observed in innumerable cases in India and
in England, the expression used in the statute alone
declares the intent of the legislature. In the words used by
this Court in State of U.P. v. Dr Vijay Anand Maharaj
n[(1963) 1 SCR 1 : AIR 1963 SC 946 : 45 ITR 414] when
the language is plain and unambiguous and admits of only
one meaning, no question of construction of a statute
arises, for the act speaks for itself. Reference was also
made in the reported judgment to Maxwell stating:
"The construction must not, of course, be strained
to include cases plainly omitted from the natural
meaning of the words."
As to question No.1 :
19. In so far as question no.1 is concerned, whether a party
can be equated with a witness, it is necessary to consider the scheme
of the Code of Civil Procedure in so far as it relates to filing of the
suit and its prosecution, including recording of evidence.
20. A suit of any nature whatsoever, has to be instituted by
filing a plaint. Such a suit, can only be instituted by a person, who
feels aggrieved by any action of the defendants and also feels himself
entitled to a particular relief, given the fact situation, against the
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defendant/s. Thus, the institution of a suit, by a person against
another person, is for a cause and to seek a relief to which the
person claiming it deems himself to be entitled to. It is an axiomatic
position of law that there cannot be any lis, without a cause of action
or without any relief being claimed by way of a prayer clause
therein. The Code of Civil Procedure therefore delineates by way of
orders and rules, the entire procedure, for the filing of the suit, its
conduct and enforcement of any judgment and decree, which may
finally be passed therein, in case it is executable in nature.
21. Order I of C.P.C., indicates who can be parties to the suit
and a person filing the suit is to be called a plaintiff and those
defending the same are to be called defendant/s. The plaintiff/s and
the defendant/s, together are referred to as parties to the suit. Thus,
a party to the suit, is the one who institutes it and the one who
defends it. The reference throughout the Code of Civil Procedure, to
the expression "parties to the suit", always means, either the plaintiff
or the defendant, or both. This is further evinced from Order I
Rule 4, Rule 6, Rule 9, Rule 10 (2), Rule 13; Order V Rule 4, Rule 5;
Order VI Rule 2, Rule 4, Rule 13, Rule 14, Rule 14 -A, Rule 15,
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Rule 17, Rule 18; Order VIII Rule 9, Rule 10, Rule 11 (Bombay
Amendment), Rule 15 (Bombay Amendment), Rule 19 (Bombay
Amendment), Rule 23 to 36 (Bombay Amendment); Order IX Rule 1,
Rule 3, Rule 14; Order X, Rule 1, Rule 1-A, Rule 1-B, Rule 1-C,
Rule 2, Rule 4; Order XI, Rule 1, Rule 2, Rule 3, Rule 5, Rule 11,
Rule 12, Rule 13, Rule 14, Rule 15, Rule 16, Rule 17, Rule 18,
Rule 19 (3), Rule 20, Rule 21, Rule 22; Order XII Rule 1, Rule 2,
Rule 2-A, Rule 3-A, Rule 4, Rule 6, Rule 9; Order XIII, Rule 1, 9, 10;
Order XIV Rules 1, 3, 5, 6; Order XV Rules 1, 3; Order XVI, all of
which make a mention of parties in the sense that they include the
plaintiff/s or/as well as the defendant/s, as the contextual
background of the text of the particular Order or Rule permits.
22. As against the above a 'witness', though not defined
either in the C.P.C. or the Evidence Act, in normal parlance is
understood as a person, who, in a lis of an adversarial nature, or
even otherwise, is called upon to give evidence as to any set of facts,
documents or otherwise as to any opinion, rendered by him, in case
he is an expert on the issue for which he is summoned, which is in
support of any plea as is raised by the party to the suit, be it the
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plaintiff(s) or the defendant (s). The C.P.C. refers to a 'witness', in
Order VII Rule 14(4); Order VIII Rule 1-A(4); Order XIII Rule 3;
Order XVI; Order XVI-A; Order XVIII Rules 3-A, 4 to 6, 8, 11 to 13,
16, 17 and 19.
23. The basic points of difference between a party and a
witness could thus be summarised as under :-
Sr. Party (Plaintiff / Defendant) Witness
No.
1. Is a person who files/defends a Does not file a suit /proceeding
suit /proceeding.
2. Claims entitlement to a relief Does not claim any relief of any
/opposes grant of any relief, in nature
a suit /proceedings
3. Prosecutes the suit/ proceeding Does not do so.
4. Has an interest in the suit Has no interest in the suit /
/proceedings proceeding
5. In his capacity as a plaintiff Does not have a choice, if
/defendant has the choice to summoned to give evidence.
enter the witness box to give [O.XVI R.7, 10, 12]
evidence, in his own cause.
6. Cannot be forced to enter the Can be forced to give evidence
witness box to give evidence, [O.XVI R.7, 10, 12]
failure may result in
consequences of dismissal of
suit (if plaintiff) or proceeding
ahead with suit (if defendant)
and also O.XVI R.20.
7. Party, in case wants to appear as Enters the witness box, after the
a witness, has to do so, before party.
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other witnesses (O.XVIII R3-A),
unless so permitted by Court.
8. A party, can only be plaintiff/s Witness can be any person, who is
or defendant/s capable of giving evidence for
proving any fact, opinion or
document or for production of
documents.
9. Party can also be a witness, thus A witness can never be a party
having a dual role
10. If enters the witness box, does Is entitled to expenses when
so, in his own cause, not summoned [O.XVI R.2, 3 & 4]
entitled to any expenses.
11. A party, if detained in prison, Even a witness detained in prison
cannot be summoned to give can be summoned for giving
evidence in his own cause evidence. [O.XVI-A R.2]
12. A party at the first hearing of Cannot be done
the suit can be examined by the
Court [O.X R.1]
13. A party is bound by its No such restriction upon the
pleadings witness.
24. It would thus be apparent that the C.P.C. uses the
expressions 'parties' and 'witness', in contradistinction to each other.
In an adversarial litigation, the conduct of which is governed by the
rules of procedure as laid down in the C.P.C. a party to a suit, is
clearly a separate and distinct person from a witness. The role of a
party, be it the plaintiff or defendant, is solely for himself as a party
to the suit, in which either relief is sought or the grant of it is
opposed, for the party.
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25. The role of a 'witness', for a 'party', is always in the
nature of supporting or proving a plea, which is being set up by the
party, be it for giving evidence of any incidence, proving a document,
giving expert opinion or otherwise. It is always in aid of a plea set up
by a party, in the plaint or the written statement. The 'witness', can
never claim anything from the Court for himself, as it is
impermissible for a 'witness', to travel beyond the role of supporting
or proving the pleas as raised by the plaintiff(s) or the defendant(s)
who have called or caused the 'witness', to be summoned, through
the process of the Court.
26. Though a 'party', be it either the plaintiff(s) or the
defendant(s) is entitled to step into the witness box, in order to
support the case set up in the plaint /written statement, that by itself
would not equate a party', with a 'witness'. A 'party', while entering
the witness box, is doing so for himself, in support of a cause set up
by the 'party' himself, while the 'witness', steps into the witness box
to give evidence, not in his own cause or for himself, but because he
has been called upon by the 'party', to do so, in support of the plea
as set up by that 'party'. The basic purpose of summoning a witness,
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is to draw support from the testimony which he may give, for the
case set up by a party.
27. Merely because Order XVI Rule 21 provides that the
Rules as to witnesses are to apply to parties summoned, that would
not mean that the party is being equated with a witness. The Rule
only applies for regulating the conduct of a party when he enters the
witness box in his own cause, otherwise in absence of such a
provision, there would be a void and the conduct of a party entering
the witness box in his own cause, would go unregulated. This is
further substantiated from the use of the expression "in so far as
they are applicable" occurring in Rule 21 of Order XVI.
28. The distinction is further fortified by the language of
Order VII Rule 14 sub-rule (1) of C.P.C., which enjoins upon the
plaintiff to produce the documents upon which he sues or relies
upon, which is in his possession or power, in the Court and the
prohibition to place it on record, as contained in sub-rule (3) on his
failure to place it earlier, without the leave of the Court, as
juxtaposed with the mandate of sub-rule (4) where no such leave is
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stated to be required, if such document is produced for the cross-
examination of the defendant's witnesses. A similar position is
contained in Order VIII Rule 1-A. The expressions 'defendant's
witness' and 'plaintiff's witness' as occurring in sub-rule (4), Rule 14
of Order VII and sub-rule (4) of Rule 1-A of Order VIII of C.P.C.
clearly indicate that what is meant and intended, is not the plaintiff
or defendant, but the witnesses as may be produced by them, in
support of the case or defence as set up by them. It is worthwhile to
be noted that in Salem Advocate Bar Association (supra), the
Hon'ble Apex Court, has already held that the expression 'plaintiff's
witness', as occurring in Order VII Rule 14(4) of C.P.C. ought to be
read as 'defendants witnesses'.
29. Even the Evidence Act, recognises the difference
between a party and a witness. This is apparent from Sections 137,
138, 139, 154 and 155 of the Evidence Act, which for the sake of
ready reference are reproduced as under :
"137. Examination-in-chief.- The examination of a witness
by the party who calls him shall be called his examination-
in-chief.
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Cross-examination.-The examination of a witness by the
adverse party shall be called his cross-examination.
Re-examination-. The examination of a witness, subsequent
to the cross- examination by the party who called him,
shall be called his re-examination.
138. Order of examinations.- Witnesses shall be first
examined-in-chief, then (if the adverse party so desires)
cross-examined, then (if the party calling him so desires)
re-examined.
The examination and cross-examination must relate to
relevant facts, but the cross-examination need not be
confined to the facts to which the witness testified on his
examination-in-chief.
Direction to re-examination.- The re-examination shall be
directed to the explanation of matters referred to in cross-
examination; and if new matter is, by permission of the
Court, introduced in re-examination, the adverse party may
further cross-examine upon that matter.
139. Cross-examination of person called to produce a
document.- A person summoned to produce a document
does not become a witness by the mere fact that he
produces it and cannot be cross-examined unless and until
he is called as a witness.
154. Question by party to his own witness
The Court may, in its discretion, permit the person who
calls a witness to put any questions to him which might be
put in cross examination by the adverse party.
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155. Impeaching credit of witness
The credit of a witness may be impeached in the following
ways by the adverse party, or, with the consent of the
Court, by the party who calls him:-
(1) by the evidence of persons who testify that they, from
their knowledge of the witness believe him to be unworthy
of credit."
(emphasis supplied)
30. The expression 'by the party who calls him', clearly
indicates that a witness, in Section 137 of the Evidence Act, is
considered to be not a party, but a person, other than a party, who is
called to give testimony, in support of the case of the party. If this was
not so, then there was no reason whatsoever, for the legislature to use
the expression 'by the party who calls him', and it could simply have
refrained from using the above expression altogether. This is further
buttressed by the expression 'if the party calling him so desires', as
occurring in Section 138 of the Evidence Act. Sections 154 and 155 of
the Evidence Act, by using the expressions 'the person who calls a
witness' and 'by the party who calls him' also fortify the distinction
between a party and a witness. These two sections in fact go a step
further by permitting the witness to be even questioned by the party
who called him and that too, to the extent of impeaching his credit.
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31. The entitlement of a party to be a witness in his own
cause stems not only from the nature of an adversarial litigation, but
can also be traced to Section 118 of the Evidence Act, which mandates
that all persons are competent to testify, subject to the qualification as
contained therein and Section 120 of the Evidence Act, which
enumerates that in a civil proceeding parties to the civil suit and the
spouses of such parties, shall be competent witnesses and so also
Order XVIII Rule 3-A, of C.P.C. which enjoins a party to appear before
other witnesses. Thus, though a party can be a witness in his own
cause, the reverse is not true, as a witness cannot be a party.
32. Merely because certain rules of procedure have been
made applicable to a party to a lis (Order XVI Rule 20) to enable a
party to give evidence, in his own cause, that by itself would not
mean that a party will stand equated with that of a witness, as the
basic distinction between them continues to exist and cannot be
obliterated and the distinction is inherent in the very nature of their
status itself in a suit.
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33. It goes without saying that when the entire conduct of
the suit is governed by the rules of procedure as contained in the
C.P.C. and taking into consideration the stress being put upon the
language of Order XVI of C.P.C. to contend that the party is to be
equated with a witness, when these very rules of procedure also
mandate that the witness is different than a party i.e Order VII
Rule 14 (4), Order VIII R-1-A (4)(a) and Order XIII Rule 1(3) of
C.P.C., it cannot be gainsaid that those ought to be ignored, in
preference to those contained in Order XVI of C.P.C. An overall view
of the entire scheme of C.P.C. has to be taken rather than a narrower
approach and the matter cannot be viewed within the narrow
compass of Order XVI of C.P.C. but has to be considered in its totality
considering all the provisions of the C.P.C. as are applicable in this
regard.
34. It is a trite position of law that the legislature does not
use words of surplusage and all words used in a statute always carry
a meaning, unless they are so absurd so as to be rendered
meaningless. It is only in this situation that the Court would be
entitled to read down the language used in a statute so as to make it
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meaningful. When the words are plain and unambiguous, it is not
permissible for the Courts to venture into any exercise to read some
other meaning than what it's plain language indicates. Any attempt
to do so would clearly amount to doing violence to the language of
the Statute, which is permissible in law. A plain reading of the
language of the Statute and what it conveys is always what is
warranted by law. In that light of the matter, we see no merits in the
arguments advanced that a party can be equated with a witness, as
the basic differences between their characters, are clear and
oblivious, on a plain reading of the provisions as referred to above.
We therefore have no hesitation whatsoever in answering question
No.1 in the negative. We reiterate that a party cannot be equated
with a witness.
As to question No.2 :
35. In fact having answered question no.1, in the negative,
that a party cannot be equated with a 'witness', the answer to
question no.2, naturally follows that a plain reading of the language
of Order VII Rule 14 sub-rule 4 and Order VIII Rule 1-A sub-rule (4)
of C.P.C. and specifically the use of the words 'defendants witness'
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and the 'plaintiffs witness', would mean not the defendant(s) or the
plaintiff(s) but only the witnesses who enter the witnesses box, in
support of the case set up by either party to the suit and not
otherwise. Therefore no leave of the Court would be required to
confront the witness with a document during his cross-examination,
as the element of surprise, would be lost, if any such permission was
required to be obtained.
36. However, it is necessary to consider the legislative intent
and purpose of the provisions of Order VII Rule 14 (4), Order 8
Rule 1-A (4)(a) and Order 13 Rule 1(3) of C.P.C.
(i) In an adversarial litigation, the basic purpose and
intent of a plaint is to place on record the facts which lead to the
cause of action, which entitle the plaintiff(s) to claim the relief(s)
prayed for. Where such pleadings refer to or are based upon
documents, Order VII Rule 14(1) to (3) and Order VIII R 1-A (1) to
(3) of Code of Civil Procedure, specifically mandate that such
documents shall be entered in a list and shall be filed with the
plaint/written statement, and in case such document(s) is not in the
possession or power of the party, it shall be stated, wherever
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possible, in whose power and possession the document(s) is. It is
further provided that where this is not done, the document(s) shall
not, without the leave of the Court, be received in evidence on
behalf of a party, at the hearing of the suit. Thus the requirement of
filing the document(s) upon which the plaintiff sues or upon which
the defendant(s) bases his defence is the first opportunity where the
relevant and material documents are required to be filed on record,
with the plaint or the written statement. The purpose behind this
clearly is to make the other party aware of the pleading of the
adversary, so that all the facts and documents necessary for deciding
the lis are on record, upon which the Court then can proceed to
frame the issues under Order XV of C.P.C. It is material to reiterate
here that Order VII Rule 14(1) to (3) applies only to the plaintiff(s)
and Order VIII Rule 1-A (1) to (3) applies only to the defendant(s)
as a plain reading of these provisions indicate. The prohibition,
though not absolute, as contained in Order VII Rule 14 (3) and
Order VIII Rule 1-A (3) in not permitting such document(s) to be
filed at a later stage, without the leave of the Court, only highlights
the need to produce them with the pleadings at the first instance
itself. The provisions of Order XI of C.P.C. thereafter provide a
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second opportunity to the parties, by way of interrogation, discovery
and inspection, to ensure that all relevant and material documents
are brought on record, which are necessary and relevant for deciding
the lis between the parties. The provisions of Order XI of C.P.C., thus
afford an additional opportunity, is addition to those contained in
Order VII Rule 14(1) and Order VIII Rule 1-A (1) to ensure, that all
the relevant and material documents are on record. The third
opportunity to ensure that all documentary evidence is on record is
provided by Order 13 Rule (1) which enjoins the parties to produce,
on or before the settlement of issues, all the documentary evidence
in original where the copies have already been filed along with the
pleadings and further enjoins the Court to receive them. The
provisions of Order VII Rule 14(3) and Order 8 Rule 1-A (3) are still
available to the parties to ensure that all relevant, material and
necessary documents are on record before the Court proceeds to
settle the issues. Thus not only ample opportunities are produced to
the parties, by the provisions of the Code, to ensure that all the
documents which are necessary to decide the lis are on record but it
is also a requirement of the law to do so. The requirement to do so,
before the settlement/framing of issues is for the reasons, that based
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upon the pleadings and such documents, that the issues are framed,
on which the parties go to trial.
(ii) There is yet another reason why the requirement
to place on record the documents, not only relied upon, but in the
possession and power of the parties is obligatory, and that is the duty
of a litigant to the Court, which requires the disclosure of relevant
and material documents, failure to do which, at times may
tantamount to even a fraud on the Court, as spelt out in S. P.
Chenglvaraya Naidu Vs. Jagannath, (1994) 1 SCC 1 in the following
words :
"5. The High Court, in our view, fell into patent error. The
short question before the High Court was whether in the
facts and circumstances of this case, Jagannath obtained
the preliminary decree by playing fraud on the court. The
High Court, however, went haywire and made observations
which are wholly perverse. We do not agree with the High
Court that "there is no legal duty cast upon the plaintiff to
come to court with a true case and prove it by true
evidence". The principle of "finality of litigation" cannot be
pressed to the extent of such an absurdity that it becomes
an engine of fraud in the hands of dishonest litigants. The
courts of law are meant for imparting justice between the
parties. One who comes to the court, must come with clean
hands. We are constrained to say that more often than not,
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process of the court is being abused. Property-grabbers,
tax-evaders, bank-loan-dodgers and other unscrupulous
persons from all walks of life find the court-process a
convenient lever to retain the illegal gains indefinitely. We
have no hesitation to say that a person, who's case is based
on falsehood, has no right to approach the court. He can
be summarily thrown out at any stage of the litigation.
6. The facts of the present case leave no manner of doubt
that Jagannath obtained the preliminary decree by playing
fraud on the court. A fraud is an act of deliberate
deception with the design of securing something by taking
unfair advantage of another. It is a deception in order to
gain by another's loss. It is a cheating intended to get an
advantage. Jagannath was working as a clerk with
Chunilal Sowcar. He purchased the property in the court
auction on behalf of Chunilal Sowcar. He had, on his own
volition, executed the registered release deed (Ex. B-15) in
favour of Chunilal Sowcar regarding the property in
dispute. He knew that the appellants had paid the total
decretal amount to his master Chunilal Sowcar. Without
disclosing all these facts, he filed the suit for the partition
of the property on the ground that he had purchased the
property on his own behalf and not on behalf of Chunilal
Sowcar. Non-production and even non-mentioning of the
release deed at the trial is tantamount to playing fraud on
the court. We do not agree with the observations of the
High Court that the appellants-defendants could have
easily produced the certified registered copy of Ex. B-15
and non-suited the plaintiff. A litigant, who approaches the
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court, is bound to produce all the documents executed by
him which are relevant to the litigation. If he withholds a
vital document in order to gain advantage on the other
side then he would be guilty of playing fraud on the court
as well as on the opposite party."
(iii) Thus the obligation to place on record the
relevant and material documents, is upon the parties, the intention
and purpose behind which is to make the other side aware of a
party's case, so that the same can be effectively met with, by
pleadings as well as documents, and there are no surprises sprung
upon the adversary at a later stage, which naturally, if permitted,
would not only result in causing delay, but also prejudice to the
adversary. There have been instances, where the Court has
permitted the filing of documents at a later stage of the trial, at
times, even when the matter was fixed for arguments and at the
appellate stages too, however, that is a matter of exercise of
discretion as vested in the Court, based upon the fact position on a
case to case basis and not as a general rule.
(iv) The basic purpose of Order VII Rule 14(1) to (3);
Order VIII Rule 1-A(1) to (3) and Order XIII Rule 1 of C.P.C. is to
ensure that all the relevant and material documents are available on
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record before the settlement of issues, so that not only there is a full
and candid disclosure of all the relevant and material documents; a
fulfillment of the obligation of the parties in view of the above
provisions; that the adversaries/parties are aware of each others
case, even in matters where Order VII Rule 14(1) to (3); Order VIII
Rule 1-A (1) to (3) and Order XIII Rule 1 of C.P.C. apply; the parties
go to the trial being fully aware of each others case. This however, is
only applicable to the parties to the suit, and the question of a party
withholding any document for the purpose of confronting the
adversary party, when he enters the witness box to give evidence at
his own course does not arise at all. Permitting a party to withhold
any document intentionally for any purpose whatsoever, would not
only negate the fairness and level playing field, which is mandated is
an adversarial litigation, but also nullify and make redundant, the
very provisions of Order VII Rule 14(1) and (2), Order VIII Rule 1-A
(1) and (2) and Order XIII Rule (1) of C.P.C.
(v) That Order VII Rule 14(4); Order VIII Rule 1-A
(4) and Order XIII Rule (1) (3) of C.P.C. create an exception to Order
VII Rule 14(1) to (3); Order VIII Rule 1-A (1) to (3) and Order XIII
Rule 1 of C.P.C. cannot be disputed, as a plain reading of the
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language of Order VII Rule 14, Order VIII Rule 1-A and Order XIII of
C.P.C. would demonstrate that Order VII Rule 14(1) to (3); Order
VIII Rule 1-A (1) to (3) and Order XIII Rule 1(1) and (2) of C.P.C.
apply to parties to the suit, which is evident by use of the expression
'parties' as contained therein, as against Order VII Rule 14(4);
Order VIII Rule 1-A (4) and Order XIII Rule 3 of C.P.C., applies only
to witness which is apparently from use of the expression 'witnesses'
as contained therein. Thus the legislature has created the exception
that documents which are produced for cross examination of witness
of the other party or handed over to the witness for refreshing his
memory, would not be required to be produced before hand, along
with the pleadings or require leave of the Court. The very purpose,
as it appears is to confront the witness, by catching him unawares in
order to bring out the truth on record. Had it not been so, the
conscious distinction as occurring in the above provisions, in relation
to documents to be filed by parties vis-a-vis documents to be
produced for cross-examinations and refreshing the memory of the
witness, would not have been created and maintained by the
legislature. That such a distinction is conscious, deliberate and
intentional, is further apparent from the fact that it is created not
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once but thrice, in Order VII Rule 14(4) (for defendants witnesses);
Order VIII Rule 1-A (4) (for plaintiffs witnesses) and Order XIII
Rule 3 (for witnesses of the other party).
(vi) This being the purpose, object and position, there
is no question of the provisions of Order VII Rule 14 (4); Order VIII
Rule 1-A (4) and Order 13 Rule (3) of C.P.C. being applicable to a
party and they are only applicable to witnesses.
(vii) The expression 'so far as they are applicable' as
occurring in Rule 21 of Order XVI of C.P.C. has to be read in the light
of the other provisions of C.P.C. as applicable in this regard. In case
there are provisions which make a distinction between a party and a
witness, the above expression, necessarily requires such distinction to
be maintained and applied. In that light of the matter the provisions of
Order VII Rule 14 (4), Order VIII Rule 1-A (4) (a) and Order XIII
Rule 1(3) of C.P.C., themselves create and require a distinction to be
maintained between the party and a witness. Had it not been so, there
was no reason for the legislature to enact the exceptions as created in
Order VII Rule 14 (4), Order VIII Rule 1-A (4) of C.P.C. in the same
provisions of Order VII Rule 14 of C.P.C. wherein it enjoined the
plaintiff to produce a document upon which the plaintiff sues in
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support of his claim, which is in his possession or power and to deliver
the document or a copy thereof, to be filed with the plaint and further
cast a prohibition not to receive such a document in evidence, without
leave of the Court; and a similar duty upon the defendant in
Order VIII Rule 1-A to do the same and to file such document(s) with
his written statement. This clearly indicates that the exceptions as
contained in Order VII Rule 14 (4), Order VIII Rule 1-A (4)(a) and
Order XIII Rule 1(3) of C.P.C have been consciously and intentionally
been created.
37. This takes us to the consideration of the judgments cited
at the bar, on the questions to be answered.
(i) In Miss T.M. Mohana, d/o Muthukumaraswamy /
V. Kannan, AIR 1984 Mad 14, upon which reliance has been placed by
learned Counsels Mr. Shareef and Mr Kalwaghe, to contend that the a
'party', is equated with a 'witness', and a witness can be confronted
with a document during the course of cross-examination inspite of the
provisions of Order VII Rule 14 (4), Order VIII R-1-A (4)(a) and
Order XIII R.1(3) C.P.C, is clearly misconceived. In fact in Miss T. M.
Mohana (supra) itself, the Court has held that at every stage at which
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the defendant is called upon to produce the documents, an exception
is always made with reference to documents produced for the cross-
examination of the plaintiff's witnesses or the cross-examination of the
witnesses of the other party. The entire text is reproduced under :
"8. Thus, it is seen from the provisions of O. 8, O. 1(2) and
(6), O. 8, R. 8-A(1) and (3) and O. 13, R. 2(2), C.P.C., that
at every stage at which the defendant is called upon to
produce the documents, an exception is always made with
reference to documents produced for the cross-examination
of the plaintiff's witnesses or the cross-examination of the
witnesses of the other party or in answer to a case set up by
the plaintiff subsequent to the filing of the suit or with a
view to refresh memory. In other words, the obligation to
produce the documents relied upon by the defendant at the
stages contemplated under O. 8, R. 1(2), O. 8, R. 8-A(1) and
by both parties under O. 13, R. 1, C.P.C., has been done
away with in all those cases with reference to documents
produced for cross-examination. That would mean that a
defendant in the suit confronting the plaintiff's witnesses, as
in this case, need not disclose the document in the list or
produce the document at an anterior point of time or even
seek and obtain the leave of court for tendering such a
document in the course of the cross-examination of the
witness of the other side."
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It is however, true that the Court in Miss T. M. Mohana
(supra) had also held that the exception carved out in Order VIII
Rule 1(6) and Order VIII Rule 8-A(3) of C.P.C., for the production of a
document in the course of the cross, examination can be availed of
only when the witness, who is so confronted with the document, is a
witness on behalf of the party and not the party himself, is not tenable
by equating the party with a witness as under, upon which great stress
has been laid :-
"9. The argument of the learned counsel for the respondent
that the exception carved out in O. 8, R. 1(6) and O. 8 R. 8-
A(3), C.P.C., for the production of a document in the course
of the cross, examination can be availed of only when the
witness, who is so confronted with the document, is a
witness on behalf of the party and not the party himself, is
not tenable. Avowedly, the provisions of O. 8, R. 1(6) and O.
8, R. 8-A(3) C.P.C., are applicable to defendants as they
contemplate the cross-examination of the witnesses of the
plaintiff by the defendant and documents being put to them
without any distinction being made regarding such
witnesses as party witnesses and other witnesses. Those
provisions are, therefore, intended to make available the
benefit of the exception to the defendant generally with
reference to all witnesses of the plaintiff including the
plaintiff. O. 7, R. 18(2), C.P.C. gives the benefit of such an
exception to the plaintiff while the defendant's witnesses
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are being cross-examined. O. 8, R. 1(6) and O. 8, R. 8-A(3),
C.P.C. extends such benefits to the defendants when the
plaintiff's witnesses are cross-examined. On the other hand,
O. 13, R. 2, C.P.C., being a general provision applicable to
both the plaintiff as well as the defendant, makes available
to both the benefit of the production of such documents
during the course of the cross-examination of the other
party. Thus, the benefit of the production of a document for
purposes of cross-examination can be availed of either by
the plaintiff or by the defendant with reference to the
witnesses of the other party. Having regard to the use of the
expression 'defendant's witnesses' in O. 7, R. 18(2), C.P.C.,
and the expression 'plaintiff's witness' in O. 8, R. 1(6) and
O. 8, R. 8-A(3), C.P.C., and the expression 'witnesses of the
other party' in O. 13 R. 2(2)(a), C.P.C., it is difficult to
confine the benefit conferred under O. 8, R. 1(6) and O. 8,
R. 8A(3)(a) C.P.C., only to cases of witnesses other than the
party. To put it differently, the expression 'plaintiff's
witnesses' would take in not only the witnesses on behalf of
the plaintiff but also the plaintiff himself when he is
examined as a witness in support of his case".
However what is necessary to be noted is that the above
proposition, was in view of the provisions as contained in Order VII,
Rule 18(2) of C.P.C., and the expression 'plaintiff's witness' in
Order VIII, Rule 1(6) and Order VIII, Rule 8-A(3) of C.P.C., and the
expression 'witnesses of the other party' in Order XIII Rule 2(2)(a) of
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C.P.C, as noticed in para 9 in Miss T. M. Mohana (supra). These
provisions as well as Order VIII, Rule 1(2), Order VIII, Rule 8-A(1) and
(3) and Order XIII, Rule. 2(2) of C.P.C. are no longer extant in C.P.C.
and stand omitted w.e.f. 1/7/2002, by virtue of Section 18 of C.P.C.
(Amendment) Act, 1999 and Section 8 of C.P.C. (Amendment) Act,
2002. Thus the reliance on Miss T. M. Mohana (supra) to contend that
a party is equated with a witness is of no assistance to the arguments
as canvassed by learned Counsels Mr. Shareef and Mr. Kalwaghe.
(ii) F.D.C. Limited (supra) relied upon by learned
Counsels Mr. Shareef and Mr. Kalwaghe, was a case in which the Court
was considering the provisions of Order XVIII Rule 4 of C.P.C. which
deal with recording of examination-in-chief of a witness on affidavit,
in which the Court held that the provisions of Order XVIII Rule 4 also
apply to parties who are examined, in light of the provisions of
Order XVIII Rule 3-A, which requires a party to appear before other
witnesses and Order XVI 16 Rule 21 which specifically applies rules as
to witnesses to parties summoned. It would be relevant to reproduce
the reasoning which is as under :
"17. It was sought to be contended that the provisions
contained in Rule 4 are applicable only to the evidence of
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witnesses and not to the parties since Rule 4 refers to
"witnesses" and not to "the parties". The argument holds no
water. Undoubtedly, un-amended Rule 4 referred to the
expression "evidence of witnesses" and the amended rule
also uses the expression "examination if chief of witnesses".
It is also true that sub title in relation to the unamended
Rule 4 was "witness to be examined in open court".
However, in case of the amended Rule 4 it reads "recording
of evidence". Besides, as regards the expression witness in
the said rule, either in the unamended or amended, the
reference thereof was and is not restricted to the persons
other than the parties to the suit, but, it also applied and
applies to the parties themselves and this is abundantly
clear from Rule 3-A of Order XVIII and Rule 21 of Order XVI
which were on the statute book even prior to amendment to
Rule 4. Rule 3-A of Order XVIII provides that:--
"Party to appear before other witnesses -- Where
a party himself wishes to appear as a witness, he
shall so appear before any other witness on his
behalf has been examined, unless the court for the
reasons to be recorded, permits him to appear as
his witness at a later stage.
Rule 21 of Order XVI reads thus:--
"Rules as to witnesses to apply to parties
summoned -- Where any party to a suit is required
to give evidence or to produce a document, the
provisions as to witnesses shall apply to him so far
as they are applicable."
Rule 3 A therefore, makes it abundantly clear that when a
party examines itself before the court in support of his or
her case, he or she assumes the character of witnesses and
the testimony of the party and that of his witness in support
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of his or her case, are all referred to as those of "the
witness" in relation to his case. That apart, the sub-title in
relation to the amended Rule 4 specifically speaks of
"Recording of evidence" and is not restricted to those
persons other than the parties to the suit. In fact, the
expression used in Rules 5, 8 and 13 is similar to that of
Rule 4. The expression "witness" cannot be read in narrow
or restricted sense as sought to be read by the respondent
but it has to be read in broad sense to include all the
persons, including all the parties to the suit who are
examined in support of the case pleaded by either of the
parties. Indeed Order XVIII is not restricted to the recording
of evidence of the persons other than the parties to the suit
but it prescribes the method of recording of evidence in all
types of suits and of all the persons appearing to depose in
relation to the issues in a suit and in favour of the case of
either of the parties, as well as those who may appear or
called upon to assist the court in order to enable the court
to arrive at just and proper decision in a case. This position
is made further clear from Rule 21 of Order XVI quoted
above."
The dictum is thus based upon the language and mandate
of Order XVI Rule 21 of C.P.C. read in conjunction with Order XVIII of
C.P.C. which provides for the procedure for hearing of the suit and
examination of witnesses and Rule 3-A of Order XVIII of C.P.C. It is
further material to note that Order XVIII Rule 4(1) mandates that in
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every case, the examination-in-chief of a witness shall be on affidavit,
and thus when a party desires to give evidence, the examination-in-
chief has to be in the form of an affidavit, so as to to comply with the
mandate as contained in Order XVIII Rule (4)(1) of C.P.C. The C.P.C.
thus has throughout maintained distinction between a party and a
witness and where it wanted the rules to apply to a party, has
specifically said so.
(iii) In Upper India Couper Paper Mills (supra) relied
upon by Learned Counsels Mr. Shareef and Mr. Kalwaghe, the issue
was not whether a witness in cross-examination could be confronted
with a document, but whether a copy of the document with which the
witness was to be confronted was to be supplied to the witness in
advance. In fact in Upper India Couper Mills (supra) the Court has
taken a view which is contrary to the one which is being canvassed, as
would be apparent from what the Court has held, which is as under :-
"7. On plain language of this provision, it is amply clear
that if the defendant is relying upon any document in his
possession or power, "in support of his defence", he is
obliged to enter such document in a list, and to produce it
in Court when the written statement is presented by him,
and simultaneously deliver the document and a copy
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thereof, to be filed with the written statement. Clause (3)
postulates that if the document is not so produced, even
such document can be received in evidence on behalf of the
defendant at the hearing of the Suit "with the leave of the
Court". However, as in the present case, if the defendant
was using any document, not already disclosed even if it
was in his possession or power, only to confront the
plaintiff's witness during the cross-examination, it will not
be obligatory for the defendant to furnish advance copy of
such document. This position is reinforced by the expansive
language of Clause (4) of Rule 1-A. It provides that "nothing
in this Rule" shall apply to the document produced for the
cross-examination of the plaintiff's witness.
8. Such provision has been made so as to ensure that the
potency or effectiveness of cross-examination of confronting
the witness is not whittled. In other words, if the document
was furnished in advance there is always a possibility of
witness modulating his version. If that happens, the efficacy
of cross-examination is bound to be affected. As is
contended before this Court, the petitioners/defendants are
wanting the subject documents to be produced for the
limited purpose during the cross-examination to confront
the plaintiffs witness. The petitioners are, therefore, justified
in contending that the petitioners were not obliged to
furnish advance copies thereof to the plaintiffs' witness."
(iv) In Subash Chander / Shri Bhagwan Yadav 2009
SCC OnLine Del 3818 the Court was considering an issue as to what
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would be the fate of the documents produced for the first time
during the cross-examination of a witness and which is denied by the
witness, during which it was held as under :-
"11. The legislative intent behind order 7 Rule 14(4) and
Order 8 Rule 1A(4) and Order 13 Rule 1(3) appears to be to
permit an element of surprise, which is very important in
the cross examination of witnesses. A litigant may well be of
the opinion that if the document on the basis whereof he
seeks to demolish the case of the adversary is filed on the
court record along with pleadings or before framing of
issues, with resultant knowledge to the adversary, the
adversary may come prepared with his replies thereto. On
the contrary, if permitted to show/produce the document
owing to element of surprise, the adversary or witness, may
blurt out the truth."
(emphasis supplied)
This in fact suports the view which we have indicated above.
(v) Ramdev Food Products (supra) relied upon by
learned Counsel Mr. Shareef, also supports the view which we have
taken. The issue for consideration therein was regarding the
production of a document at the stage of cross-examination of the
witness for the defendant for which an application made came to be
rejected by the Trial Court, which rejection was under challenge
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before the High Court. The High Court while considering the dictum
in Surinder Kumar Bajaj / Sheela Rani (MANU/DE/3264/2009) and
Subhash Chander / Shri Bhagwan Yadav (MANU/DE/3343/2009)
both by the Delhi High Court, held as under :-
"19. -----. Therefore, in view of sub-rule (4) of rule 14 of
Order VII of the Code, nothing in that rule shall apply to
documents produced for the cross-examination of the
defendant's witness. Consequently, the provisions of sub-
rule (3) of rule 14 would not apply if the document is
produced for cross-examination of the defendant's witness
and it would not be necessary to obtain the leave of the
court for production of such document. But in that case,
such document has to be used only for the purpose of such
cross-examination and need not be produced in advance
nor is the leave of the court required to be obtained for
using such document for the purpose of cross examination
of the witness. If the element of surprise has to be
maintained, such document has to be produced at the time
of cross examination and not before, otherwise the very
purpose of introducing the surprise element is lost.
20. ----. Since the plaintiff has sought the leave of the
court to produce the documents in question, it can be
safely presumed that the application has been made under
sub-rule (3) of rule 14 of Order VII of the Code. In the
opinion of this court, had it been the intention of the
plaintiff to put such documents to the defendant in his
cross-examination, as is sought to be contended by the
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learned counsel for the petitioner, there was no
requirement for filing such application and the documents
would simpliciter have been put to the defendant during
the course of his crossexamination by resorting to the
provisions of sub-rule (4) of rule 14 of Order VII.
21. -----. However, as noticed hereinabove, it has been
contended on behalf of the petitioner that such documents
were sought to be produced under sub-rule (4) of rule 14
of Order VII of the Code which says that nothing in the
rule shall apply to document produced for the cross
examination of the plaintiff's witness. A similar provision is
found in sub-rule (4) of rule 1A of Order VIII as well as in
sub-rule (3) of rule 1 of Order XIII of the Code. Therefore,
resort cannot be had either to sub-rule (1) or sub-rule (3)
of rule 14 of Order VII of the Code for production of
documents for the purpose of cross examination of the
defendant's witness. However, as noted hereinabove,
insofar as the production of documents for cross-
examination of witness is concerned, the leave of the trial
court is not required to be obtained nor is any application
required to be made as contemplated under subrule (3) of
rule 14 of Order VII of the Code.
25. In the opinion of this court, if the petitioner seeks to
bring the documents on record to maintain the element of
surprise, the documents have to be put to the witness to
confront him at the time of cross-examination and are not
required to be produced by making an application for
production of the same. Therefore, the application made
by the petitioner cannot be treated as one under sub-rule
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(4) of rule 14 of Order VII of the Code.However, since it
has been contended on behalf of the petitioner that the
documents are sought to be produced on record under sub-
rule (4) of rule 14 of Order VII of the Code, while
upholding the order passed by the trial court, with a view
to balance equities, it is clarified that it would be
permissible for the petitioner to produce such documents
for the purpose of confronting the witness at the time of
cross examination of such witness for which purpose it
would not be necessary to obtain leave of the court."
The Court, thus had maintained the order of the Trial
Court rejecting the application for production of documents. However
since an application was made for permission to file documents, which
the Court allowed, it was stated that no leave would be required while
confronting the document to the witness. Ramdev Food Products
(supra) thus in fact does not support the proposition as canvassed by
learned Counsel Mr. Shareef, rather it agrees to a position to the
contrary, that the element of surprise has to be maintained while
confronting a witness with a document in cross-examination and
therefore no leave of the Court would be required for its production at
that stage.
(vi) In Ibrabhim Karajgi (supra), upon which reliance
has been placed by learned Counsel Mr. Shareef, was a case wherein in
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a suit for specific performance, the Court directed the plaintiff give his
affidavit under Order XVIII Rule 4 of C.P.C.. An application was filed
by the plaintiff under Order XVIII Rule 5, requesting the Court to
permit him to lead oral evidence instead of filing an affidavit as
contemplated by Order XVIII Rule 4, which application being
dismissed a revision petition came to be filed before the High Court.
The Court in the above contextual back ground held that in so far a
application of Order XVIII and the rules framed therein, in the matter
of recording evidence, there was no distinction between a part and a
witness, which in fact is actually borne out by the provisions of
Order XVI Rule 21 of C.P.C., which applies the provisions as to
witnesses to a party, so far as they are applicable. The Court in
Ibrahim Karajgi (supra), was not considering the equability of a party
with a witness for all purposes or for that matter in the contextual
background of the exceptions as contained in Order VII Rule 14 (4),
Order VIII Rule 1-A (4)(a) and Order XIII Rule 1(3) of C.P.C. The
equating of a party with a witness, is, as already discussed above, due
to the mandate of Order XVI Rule 21 and the reason that had it not
been so, the conduct of the party when he enters the witness box for
giving evidence in his own cause, would remain unregulated. Since
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the applicability of the rules/provisions as to witnesses, to a party
giving evidence is by virtue of a provision as contained in the C.PC
(Order XVI Rule 21), the same would be subject to other provisions in
the C.P.C., which carve out an exception in the matter of applicability
of such rules/provisions as in the present matter which are as
contained in Order VII Rule 14 (4), Order VIII Rule 1-A (4)(a) and
Order XIII Rule 1(3) of C.P.C.
(vii) Bank of India (supra) relied upon by learned
Counsels Mr. Shareef and Mr. Kalwaghe, is also based upon the
provisions of Rule 18 of Order VII of C.P.C., which stands omitted by
the C.P.C., (Amendment) Act, 2002 w.e.f 1/7/2002 and is thus no
assistance to the arguments as been canvassed by them.
(viii) Havovi Kersi Sethna (supra) does not lay down
the proposition that for the purposes of Order VII Rule 14 (4), Order
VIII Rule 1-A (4)(a) and Order XIII Rule 1(3) of C.P.C., a party is
equated with a witness. On the contrary, the exception as carved out,
under the above provisions, is recognized, and it is held that the very
purpose of cross-examination will be frustrated, if the document with
which the witness is to be confronted is to be shown to or inspected by
the party earlier. The relevant portion reads as under :-
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"6. It is important to note that in sub-rule (4) of Order
VII, Rule 14, sub-rule (4) of Order VIII, Rule 1-A and sub-
rule (3) of Order XIII, Rule 1 of the Civil Procedure Code,
an exception is carved out for documents required to be
produced for the cross-examination of the plaintiff's
witness under Order VII, Rule 14 and Order VIII, Rule 4
and for the cross-examination of the witnesses of the other
party (that is either party) under Order XIII, Rule 1.
7. This is the most necessary incident of the exercise
of cross-examination. The very purpose of the cross-
examination will be frustrated, if the documents with
which a witness of the other side of the plaintiff's witness
is to be confronted is shown to or inspected by that party
earlier. The Court is concerned with the determination of
the truth. Truth has to emerge from the evidence on
record. The skill of the cross-examiner brings forth the
hitherto unknown truth on record. This takes place in a
cross-examination. It would be a farce to notify the party
who is being cross-examined of the questions that may be
asked by the cross-examiner. Consequently, in the cross-
examination of a party any document can be produced
and the witness under cross-examination can be
confronted therewith. Similarly any document can be
produced to that end for the witness to refresh his or her
memory."
(ix) In B. D. Sharma (supra), which has been relied
upon by learned Counsels, Mr. Kalwaghe and also by Mr. Sundaram
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the Court has in the contextual background of identical language as
used in Clause 3 of Rule 8-A of Order VIII of C.P.C., which Rule 8-A
has since been repealed, has held as under :-
"6. In reply learned Counsel for the Respondent
contended that even that a Plaintiff is a witness for
himself, but he cannot be put in a position of the witnesses
as envisaged by Order 18 Rule 3A and Order 8, Rule 8A of
the Code of Civil Procedure. Reference is also made to the
words used by the legislature in contradistinction from the
Plaintiff to that of a witness. As mentioned in Rule 3A of
Order 18 although the precedent is given to the party
concerned when appearing as a witness of his own, but in
Rule 8A of Order 8 by importing the words in Clause (3) of
that rule :
"Nothing in the rule shall apply
documents produced;
(a) for the cross examination of the
Plaintiff's witnesses,
(b) In answer to any case set up by the
Plaintiff subsequent to the filing of the plaint, or
(c) handed over to a witness merely to
refresh his memory."
are of great significance, which clearly indicate that
legislature never intended to bring the Plaintiff in the
category of such witnesses in the cross-examination of
whom a document not produced earlier are relied on by
the adverse party can be introduced in evidence.
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7. The learned trial Judge has taken into consideration
all the aspects as pointed out hereinabove and in my
opinion has come to a right conclusion that the term
"witness" for the purposes of producing a document by
surprise in cross-examination of the Plaintiff cannot be
stretched to the extent of giving liberty to the Defendants
to introduce a document by surprisingly taking up the
Plaintiff, which was neither set up in the list of reliance nor
the copy of the same was produced along with the written
statement. It is because of the fact that a witness is not
bound by the pleadings whereas parties are bound by the
same. An adverse party cannot be taken by surprise in a
Civil suit and, therefore, the legislature in its wisdom left
the liberty of introducing a document during the cross-
examination of the witness only, which term does not
include the Plaintiff to that extent: In this view of the
matter for that purpose the provisions of Sections 118,
120, 132, 145 & 155 of the Evidence Act cannot come to
the rescue of the Petitioners/Defendants to introduce a
document during the cross-examination of the Plaintiff as
was does in the present case. Even Rule 21 of Order 16
uses the the word with a great caution for the purpose of
applicability to produce a document. The provisions made
applicable to the parties shall apply to him so far as they
are applicable, makes it abundantly clear that the
production of the document is subject to the limitations
prescribed under other provisions of the Code."
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This again supports the view which has been taken by
us in answering the questions under reference. We, thus have no
hesitation in holding that documents can be directly produced at the
stage of cross-examination of a witness, who is not a party, to
confront him/ her, under Order VII Rule 4 (4); Order VIII
Rule 1-A(4) and Order XIII Rule 3 of C.P.C. without seeking prior
leave of the Court.
As to question no.3 :
38. Purushottam Shankar Ghodgaonkar (supra) was a case in
which while the defendant, was under cross-examination, the plaintiff
sought to produce documents contending that they were reserved for
cross-examination of the defendant, by way of an application which
came to be rejected. This therefore, was a case, where, in view of the
filing of the application for production of documents by the plaintiff at
the stage of cross-examination of the defendant, the provisions of
Order VII Rule 14 (3) of C.P.C. stood invoked. The Court in that
contextual background held that a party to the suit cannot be equated
with a witness and the party (defendant in this case) cannot be
confronted with a document by casting surprise upon him. Vinayak M.
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Dessai, (supra) was also a case in which an application for production
of documents was allowed at the instance of the defendant to confront
the plaintiff in the course of cross-examination, in which background
the Court considering Purushottam Shankar Ghodgaonkar (supra) as
well as other judgments cited, including Laxmikant Lotlekar /
Raghuvir Lotlekar 1984 Mh.L.J. 938, held that the documents could
not be permitted to be produced directly during the cross-examination
of the plaintiff. Purushottam Shankar Ghodgaonkar (supra) and
Vinayak M. Dessai, (supra), both consider a situation where the
document was sought to be produced at the time of cross-examination
of a party, who was a witness in his own cause and not during the
cross examination of a witness, called/summoned by a party. It is in
light of this position that the observations that permitting production
of documents, directly at the stage of cross-examination of a party to a
suit (plaintiff/defendant) was held to be impermissible, on the
premise that doing so would amount to springing a surprise, which
are correct, as doing so is not permissible in view of Order VII Rule 14
(3) and Order VIII Rule 1-A(3) of C.P.C. without leave of the Court.
This is so also for the reason that Order VII Rule 14(4); Order VIII
Rule 1-A(4) and Order XIII Rule 3 of C.P.C. was not applicable, since
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the person in the witness box, was a party to the suit and not a witness
called/summoned by the party and thus there is no question of
whittling down the effectiveness of cross-examination of the party to
the suit.
39. As observed earlier a party in the course of trial of a suit,
is governed by the provisions of C.P.C., and specifically in respect of
pleadings and documents as laid down in Order VI, Order VII, Order
VIII, Order XIII of C.P.C., which obligate a full disclosure before the
Court of the facts as well as the documents. That being the position, a
party cannot be permitted, at the stage of cross-examination to
directly confront the adversary (opposite party) while in the witness
box, by a document not already produced on record, as the basic
purpose of the adversary being made aware or imparted knowledge of
the other side's case and of having an opportunity to raise an
appropriate defence to the same, is negated, defeating the very
purpose of a fair trial. That is a very mandate of Order VII Rule 4 (1)
to (3); Order VIII Rule 1-A (1) to (3) and Order XIII Rule 1 of C.P.C.,
under which if a document not earlier placed on record, can not be so
produced later on, except with the leave of the Court, which cannot be
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granted for the mere asking, but has to be upon reasons to be
recorded in writing, after affording the adversary and opportunity to
place its opposition (if any) on record and hearing both the sides. As
we see Purushottam Shankar Ghodgaonkar, Vinayak M. Dessai and
Upper India Couper Paper Mills (supra) enunciate the same
proposition that no permission of the Court is required for production
of the document, if the witness is to be confronted with a document
during cross-examination, however, such confrontation is not
permissible when the party himself is a witness. In our considered
opinion, in light of the discussion made above, both Purushottam s/o
Shankar Ghodgaonkar (supra) and Vinayak M. Dessai, (supra) lay
down the correct law.
40. We, therefore answer the questions under reference as
under :-
1. Whether a party to a suit A party to a suit (plaintiff/
i.e. plaintiff/or defendant defendant) cannot be equated with
is also a witness and the a witness.
provisions of Order VII The provisions of Order VII Rule 14
Rule 14, Order VIII Rule (4), Order VIII Rule 1-A (4) which
1-A (4) (a) and Order includes Rule 1-A (4) (a) and
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XIII Rule 1 (3) (a) of the Order XIII Rule 1 (3) which
C.P.C. need to be includes Rule 1 (3) (a) of C.P.C.
interpreted and applied are not applicable to a party, who
by equating "party" with enters the witness box to tender
a "witness" ? evidence in his own cause.
The provisions are applicable to a
witness alone.
2. Whether documents can Documents can be directly
be directly produced at produced at the stage of cross-
the stage of cross- examination of a witness, (who is
examination of a party not a party to the suit), to confront
and/or a witness to the witness for refreshing his
confront him/her without memory, under Order VII Rule 14
seeking any prior leave of (4); Order VIII Rule 1-A(4) and
the Court under Order Order XIII Rule 3 of C.P.C. without
VII Rule 14 (4), Order seeking prior leave of the Court.
VIII Rules 1 (A) (4) (a)
and Order XIII Rule 1 (3)
(a) of the Civil Procedure
Code ?
3. Whether the observations Since we have held that a party
made in the judgment in cannot be equated with a witness in
the cases of Purushottam the matter of applying the
s/o Shankar Ghodgaonkar provisions of VII Rule 14 (4); Order
(supra) and Vinayak M. VIII Rule 1-A(4) and Order XIII
Dessai (supra), to the Rule 3 of C.P.C, the observations
effect that permitting made in Purushottam s/o Shankar
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production of documents Ghodgaonkar (supra) and Vinayak
directly at the stage of M. Dessai (supra), are correct and
cross-examination of a would not lead to whittling down
witness and/or a party to the effect of cross-examination of a
a suit would amount to witness.
springing a surprise and Even if the witness was a party to
hence, it is impermissible, the suit, what has been held in
are correct in the light of Purushottam s/o Shankar
the plain reading of the Ghodgaonkar (supra) and Vinayak
aforesaid provisions and if M. Dessai (supra) would equally
accepted it would lead to hold good.
whittling down the
effectiveness of cross-
examination of a witness
and/or a party ?
41. Having answered the reference in the above terms, the
matters may now be placed before the appropriate Bench, for decision
upon merits, in light of the answers above.
We also hereby record our appreciation of the learned
Counsels, who have assisted us in the present matter.
(AVINASH G. GHAROTE, J.) (SUNIL B. SHUKRE, J.)
Wadkar
Digitally signed by
Shailendra Shailendra Wadkar
Wadkar Date: 2021.02.09
17:29:02 +0530
