Bombay High Court
Mohammed Abdul Wahid S/O Dr. Mohammed ... vs Smt. Nilofer Wd/O Dr. Mohammad Abdul ... on 9 February, 2021
Equivalent citations: AIRONLINE 2021 BOM 1017
Bench: S.B. Shukre, Avinash G. Gharote
wp7717 of 2019.odt
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...
wp7717 of 2019.odt
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.) wp7717 of 2019.odt 3
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 wp7717 of 2019.odt 4 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 wp7717 of 2019.odt 5 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 wp7717 of 2019.odt 6 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) wp7717 of 2019.odt 8 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 wp7717 of 2019.odt 9 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 wp7717 of 2019.odt 10 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.
wp7717 of 2019.odt 11
(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 wp7717 of 2019.odt 12 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.
wp7717 of 2019.odt 13
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 wp7717 of 2019.odt 14 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.
wp7717 of 2019.odt 15 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 wp7717 of 2019.odt 16 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 wp7717 of 2019.odt 17 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 wp7717 of 2019.odt 18 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, wp7717 of 2019.odt 19 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 wp7717 of 2019.odt 20 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.
wp7717 of 2019.odt 21 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.
wp7717 of 2019.odt 22
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, wp7717 of 2019.odt 23 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 wp7717 of 2019.odt 24 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.
wp7717 of 2019.odt 25 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.
wp7717 of 2019.odt 26
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.
wp7717 of 2019.odt 27
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.
wp7717 of 2019.odt 28
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 wp7717 of 2019.odt 29 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' wp7717 of 2019.odt 30 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 wp7717 of 2019.odt 31 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 wp7717 of 2019.odt 32 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 wp7717 of 2019.odt 33 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, wp7717 of 2019.odt 34 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 wp7717 of 2019.odt 35 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 wp7717 of 2019.odt 36 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 wp7717 of 2019.odt 37 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 wp7717 of 2019.odt 38 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 wp7717 of 2019.odt 39 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 wp7717 of 2019.odt 40 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."
wp7717 of 2019.odt 41 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 wp7717 of 2019.odt 42 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 wp7717 of 2019.odt 43 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 wp7717 of 2019.odt 44 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 wp7717 of 2019.odt 45 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 wp7717 of 2019.odt 46 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 wp7717 of 2019.odt 47 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 wp7717 of 2019.odt 48 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 wp7717 of 2019.odt 49 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 wp7717 of 2019.odt 50 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 wp7717 of 2019.odt 51 (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 wp7717 of 2019.odt 52 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 wp7717 of 2019.odt 53 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 :-
wp7717 of 2019.odt 54 "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 wp7717 of 2019.odt 55 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.
wp7717 of 2019.odt 56
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."
wp7717 of 2019.odt 57 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. wp7717 of 2019.odt 58 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 wp7717 of 2019.odt 59 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 wp7717 of 2019.odt 60 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 wp7717 of 2019.odt 61 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 wp7717 of 2019.odt 62 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