Calcutta High Court
In The Goods Of Kanhaiyalal Sikhwal vs In on 28 July, 2025
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OD-7
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
Ordinary Original Civil Jurisdiction
T.S./7/2005
In
T.S./8/2005
IN THE GOODS OF KANHAIYALAL SIKHWAL VERSUS IN
THE GOODS OF SAVITRI DEVI SIKHWAL (DEC)
Before:
The Hon'ble Justice BISWAROOP CHOWDHURY
Date: 28th JULY 2025
Appearance:
Mr. Debdutta Saha,
Adv. Mr. Tapas Saha,
Adv. Mr. D. Deb, Adv.
Dr. Rudra Dhar, Adv.
Mr. S. Saha, Adv.
Ms. N. Chatterjee, Adv.
Mr. Abhijeet Sikhwal, Adv.
Mr. A. Sikhwal, Adv.
The Court: A question of law was raised by the Learned Advocates for the parties as
to the statutory requirement to disclose a document before the same being relied in
evidence.
Learned Advocate representing the defendant in T.S. 7/2005 and plaintiff in
T.S. 8 of 2005 submits that it is not necessary to disclose the document prior to
being relied and Learned Advocate representing plaintiff in T.S. 7/2005 and
Defendant in T.S. 8/2005 submits that the document ought to have been disclosed.
Learned Advocate for the Defendant in T.S. 7/2005 submits that witness is not
the defendant or plaintiff and is deposing without being summoned thus document
need not be disclosed. Learned Advocate further submits that disclosure is required
to be done by the parties and not by the witnesses. Learned Advocate also submits
that when any party is deposing rules are to be followed and it is not applicable to
witnesses. Learned Advocate relies upon the provisions contained in chapter XIV of
High Court Rules and Order XVI Rule 1 Sub-Rule 3 CPC and the decision of the
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Hon'ble Supreme Court in the case of Vidhyadhar VS Manikrao and Anr reported in
1999(3) SCC P-573.
Learned Advocate for the plaintiff in T.S. 7/2005 submits that the dispute is
not production of document but method of producing document. Learned Advocate
further submits that the witness who intends to produce a document is not a
summoned witness but is deposing on behalf of the defendant. Learned Advocate also
submits that no document can be introduced without disclosing Learned Advocate
relies upon chapter IX Rule 1, Chapter X Rule 1 and Chapter XI Rule 1 and 2 of the
Original Side Rules and Order VIII Rule 1A CPC. Learned Advocate also relies upon
the decision of the Hon'ble Supreme Court in the case of Mahammed Abdul Wahid
VS Nilofer and Anr. reported in (2024) 2 SCC P-144.
Before proceeding to decide the material in issue it is necessary to consider the
provisions contained in Order VIII Rule 1A CPC. Order XI Rule 1 and 2 CPC, and
Order XVI Rule 1 Sub-rule-3 CPC.
Rule 1A of Order VIII CPC provides as follows:
Rule 1-A. Duty of defendant to produce documents upon which relief is
claimed or relied upon by him - 1) where the defendant bases his defence upon a
document or relies upon any document in his possession or power, in support of his
defence or claim for set-off or counter claim he shall enter such document in a list
and shall produce it in Court when the written statement is presented by him and
shall at the same time deliver the document and a copy thereof to be filed with the
written statement.
2) Where any such document is not in the possession or power of the
defendant he shall wherever possible state in whose possession or power it is.
3) A document which ought to be produced in Court by the defendant under
this rule but is not so produced shall not without the leave of the Court be received
in evidence on his behalf at the hearing of the suit.
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4) Nothing in this rule shall apply to document:-
a) produced for the cross-examination of the plaintiff's witnesses or
b) handed over to a witness merely to refresh his memory.
Order XI- Rule 1 of the Code of Civil Procedure Provides as follows:
1.Discovery by interrogatories-In any suit the plaintiff or defendant by leave of the Court may deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties and such interrogatories when delivered shall have a note at the foot thereof stating which of such interrogatories each of such persons is required to answer: provided that no party shall deliver more than one set of interrogatories to the same party without an order for that purpose. Provided also that interrogatories which do not relate to any matters in question in the suit shall be deemed irrelevant notwithstanding that they might be admissible on the oral cross- examination of a witness.
2. Particular interrogatories to be submitted.- on an application for leave to deliver interrogatories the particular interrogatories proposed to be delivered shall be submitted to the Court and that Court shall decide within seven days from the day of filing of the said application. In deciding upon such application the Court shall take into account any offer which may be made by the party sought to be interrogated to deliver particulars or to make admissions or to produce documents relating to the matters in question, or any of them and leave shall be given as to such only of the interrogatories submitted as the Court shall consider necessary either for disposing fairly of the suit or for saving costs.
Rule 1A- Production of witnesses without summons - subject to the provisions of sub-rule 3 of Rule 1 any party to the suit may without applying for summons under Rule 1 bring any witness to give evidence or to produce documents. 4
In the case of Vidhyadhar (supra) the Hon'ble Supreme Court observed as follows:
29. Summoning and attendance of witnesses has been provided for in Order 16 of the CPC. Order 16 Rule 1 which speaks of list of witnesses and summons to witnesses provides as under:
Rule 1. List of witnesses and summons to witnesses.
(1) On or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summons to such persons for their attendance in Court. (2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned. (3) The Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in Sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list. (4) Subject to the provisions of Sub-rule (2), summons referred to in this rule may be obtained by parties on an application to the Court or to such officer as may be appointed by the Court in this behalf.
30. Rule 1A which allows production of witnesses without summons provides as under:
Rule 1A. Production of witnesses without summons.
Subject to the provisions of Sub-rule (3) of Rule 1, any party to the suit may, without applying for summons under Rule (1), bring any witness to give evidence or to produce documents.5
31. These two Rules read together clearly indicate that it is open to a party to summon the witnesses to the Court or may, without applying for summons, bring the witnesses to give evidence or to produce documents. Sub-rule (3) of Rule 1 provides that although the name of a witness may not find place in the list of witnesses filed by a party in the Court, it may allow the party to produce a witness though he may not have been summoned through the Court. Rule 1A which was introduced by the CPC (Amendment) Act, 1976 with effect from 1.2.1977 has placed the matter beyond doubt by providing in clear and specific terms that any party to the suit may bring any witness to give evidence or to produce documents. Since this Rule is subject to the provisions of Sub-rule (3) of Rule 1, all that can be contended is that before proceeding to examine any witness who might have been brought by a party for that purpose, the leave of the Court may be necessary but this by itself will not mean that Rule 1A was in derogation of Sub-rule (3) of Rule 1. The whole position was explained by this Court in Mange Ram v. Brij Mohan12. in which it was held that Sub-rule (3) of Rule 1 and Rule 1A operate in two different areas and cater to two different situations. It was held:
"There is no inner contradiction between Sub-rule (1) of Rule 1 and Rule 1A of Order XVI. Sub-rule (3) of Rule 1 of Order XVI confers a wider jurisdiction on the Court to cater to a situation where the party has failed to name the witness in the list and yet the party is unable to produce him or her on his own under Rule 1A and in such a situation the party of necessity has to seek the assistance of the Court under Sub-rule (3) to procure the presence of the witness and the Court may if it is satisfied that the party has sufficient cause for the omission to mention the name of such witness in the list filed under Sub-rule (1) of Rule 1, the Court may still extend its assistance for procuring the presence of such a witness by issuing a summons through the Court or otherwise which ordinarily the Court would not extend for procuring the attendance of a witness whose name is not shown in the list. 6 Therefore, Sub-rule (3) of Rule 1 and Rule 1-A operate in two different areas and cater to two different situations."
In the case of Mohammed Abdul Wahid (supra) the Hon'ble Court observed as follows:
'13. A party to the suit is one on whose behalf or against whom a proceeding in a court has been filed. A witness is a person, either on behalf of the plaintiff or the defendant, who appears before a court to substantiate a statement or claim made by either side. Neither the phrase "party to the suit" nor "witness" is defined under CPC or any other statute on the books. However on this issue, a Constitution Bench of this Court in State of Bombay v. Kathi Kalu Oghad held as under:
"11.... "To be a witness" means imparting knowledge in respect of relevant facts, by means of oral statements or statements in writing, by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation. A person is said "to be a witness" to a certain state of facts which has to be determined by a court or authority authorized to come to a decision, by testifying to what he has seen, or something he has heard which is capable of being heard and in respect of matters in controversy."
A "witness" as defined by P. Ramanatha Aiyar's Advanced Law Lexicon is as under:
"One who sees, knows, or vouches for something (a witness to the accident). (1) in person, (2) by oral or written deposition, or (3) by affidavit (the prosecution called its next witness)."
Black's Law Dictionary, 7th Edn., 1999:
"The term "witness"*, in its strict legal sense, means one who gives evidence in a cause before a Court; and in its general sense includes all persons from whose lips testimony is extracted to be used in any judicial proceeding, and so includes deponents and affiants as well as persons delivering oral testimony before a Court or jury."7
20. The relevant principles as culled out by B.P. Sinha, C.J. (majority opinion) in the above referenced decision of the Constitution Bench in Kathi Kaly Oghad case10 may also be instructive in gaining an understanding of the ambit of a witness. In para 16, it was observed:
"16....(3) "To be a witness" is not equivalent to "furnishing evidence" in its widest significance; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused.
(4)Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showings parts of the body by way of identification are not included in the expression "to be a witness".
(5) "To be a witness" means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in court or otherwise.
(6) "To be a witness" in its ordinary grammatical sense means giving oral testimony in court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in court or out of court by a person accused of an offence, orally or in writing."
21. It is clear from the above discussion, that witnesses and parties to a suit, for the purposes of adducing evidence, either documentary or oral are on the same footing. The discussion as aforesaid, emphasizes the lack of differentiation between a party to suit acting as a witness and a witness simpliciter in the suit proceedings. The presence of these provisions also begs the question that if the legislature had the intent to differentiate between a party to a suit as a witness, and a witness simpliciter, it would have done so, explicitly. On this we may only highlight what the High Court2 had to observe: (Mohd. Abdul Wahid case2, SCC OnLine Bom para 27) "27. Merely because Order 16 Rule 21 provides that the Rules as to witnesses are to apply to parties summoned, that would not mean that the party is being 8 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, would go unregulated. This is further substantiated from the use of the expression "insofar as they are applicable"
occurring in Rule 21 of Order 16."
29. The differentiation between the party to a suit and a witness, as is made clear by our earlier discussion, is not something that gels with the law. As has been hitherto observed, the term witness does not exclude the party to the suit i.e. the plaintiff or the defendant, themselves appearing before the court to enter evidence. As far as the non-production of documents amounting to fraud, it may be true that the non-production of documents on which the parties place reliance, may hinder the progression of the suit-and in a given case, perhaps may amount to fraud-but we do not comment on those possibilities, if any. However, the intentional withholding of a document, in these two situations-is completely different. One is the withholding of a document upon which the case depends, or is essential for the lis to be appropriately decided-and the other is solely for the purpose of effective cross-examination. The two cannot be held to be at the same pedestal, the latter most certainly not amounting to fraud.
Upon hearing the Learned Advocates and considering the relevant provisions of the Code of Civil Procedure and the Judicial decisions relied it is clear that although a party has failed to name a witness in the witness list or has failed to mention in the list of documents the documents he seeks to rely such witness may be examined with or without summons with the leave of the Court, and the document not entered in the list may also be produced with the leave of the Court. Although formal application for leave to produce the document is not made but the Court has discretion to allow the same or oral prayer in the interest of justice provided such documents are disclosed in accordance with the provisions contained in Order XI of the Code of Civil Procedure read with chapter XI of the Original Side Rules. 9
Although there is an exception to the rule in case of summoned witness but as the witness who is examined is not summoned witness the exception will not apply The argument advanced by the Learned Advocate for the defendant that the Rule to disclose documents is applicable in case of parties to suit and not in case of witnesses cannot be sustained in view of the decision of the Hon'ble Supreme Court in the case of Mohammed Abdul Wahid (supra).
Thus it is decided and ordered that the document sought to be relied upon by the defendant be disclosed and procedure laid down under Order XI CPC read with chapter XIV of Original Side Rules be complied with.
Let the matter appear on 13/08/2025 as 'To be mentioned.' In the meantime the procedure of disclosure and inspection be completed.
(BISWAROOP CHOWDHURY, J.) A.Bhar(P.A)