Delhi District Court
Unknown vs Present Order Shall Dispose Of The ... on 19 August, 2015
1 India Visit. Com Pvt. Ltd. v. S.C. Nayar and Ors. CS No. 757/14 1.
Present order shall dispose of the objection raised by counsel for the defendant during the cross examination of defendant conducted on 12.11.2014.
2. Dispute which arose between the parties during the time of cross examination was that counsel for the plaintiff confronted the witness with a photocopy of lease deed and same was objected to by the counsel for the defendant stating that witness has neither executed the said document neither the said document is concerned with the witness and as such witness cannot be confronted with the same. On the other hand it was stated by the counsel for the plaintiff that in paragraph 13 of the affidavit in evidence filed by the defendant it is stated that "...... It is submitted that later on it was revealed that the property in question was not fulfilling their requirements and further the plaintiff got the better option and as such started making false and frivolious complaints qua the seepage, electric connections......." and that said averment is made by the defendant without any evidence and said lease deed is necessary to refute the contention of the defendant that " plainitff got the better option"
3. Be that as it may, question which arose is whether a witness can be confronted with document which is neither executed by said witness, nor concerned with said witness.
4. Before dealing with the said question inhand, it would be pertinent to deal with the relevant law:
2Order VII Rule 14
14. Production of document on which plaintiff sues or relies.--(1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.
(2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.
[(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
(4) Nothing in this rule shall apply to document produced for the cross- examination of the plaintiff's witnesses, or, handed over to a witness merely to refresh his memory.] Order VIII Rule 1A [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.] (4) Nothing in this rule shall apply to documents--
3(a) produced for the cross-examination of the plaintiff's witnesses, or
(b) handed over to a witness merely to refresh his memory.] Order XIII Rule 1
1. Original documents to be produced at or before the settlement of issues.--(1) The parties or their pleader shall produce on or before the settlement of issues, all the documentary evidence in original where the copies thereof have been filed along with plaint or written statement. (2) The Court shall receive the documents so produced:
Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.
(3) Nothing in sub-rule (1) shall apply to documents--
(a) produced for the cross-examination of the witnesses of the other party; or
(b) handed over to a witness merely to refresh his memory.] • Subash Chander v. Bhagwan Yadav, 2009 SCC OnLine Del 3818 :
(2010) 114 DRJ 306
8. Order 7 Rule 14(4), Order 8 Rule 1(A)(4), as well as Order 13 Rule 1(3) provide that the provisions requiring parties to file documents along with their pleadings and/or before the settlement of issues do not apply to documents produced for the cross examination of the witnesses of the other party. To the same effect, Section 145 of the Evidence Act also permitsdocuments to be put to the witnesses, though it does not provide whether such documents should be already on the court record or can be produced/shown for the first time. However, in view of the unambiguous provisions of the CPC, it cannot be held that the document cannot be produced/shown for the first time during cross examination. If the witness to whom the said document is put, identifies his handwriting/signature or any writing/signatures of any other person on the said document or otherwise admits the said documents, the same poses no problem, because then the document stands admitted into evidence. However, the question 4 arises as to what is the course to be followed if the witness denies the said document. Is the document to be kept on the court file or to be returned to the party producing the same?
9. This question also in my view is also not difficult to answer. It cannot possibly be said that the document should be returned to the party. If the document is so returned it will not be possible for the court to at a subsequent stage consider as to what was the document put and what was denied by the witness. In a given case, it is possible that the answer of the witness on being confronted with the document may not be unambiguous.
It may still be open to the court to consider whether on the basis of the said answer of the witness, the document stands admitted or proved or not and/or what is the effect to be given to the said answer. Thus, the document cannot be returned and has to be necessarily placed on the court file.
10. The next question which arises is that if the document is so placed on the court file, whetherit becomes/is to be treated as the document of the party producing the same and is that party entitled to prove the said document notwithstanding having not filed the same earlier, as required by law, or the use of the said document is to be confined only to confront the witness to whom it was put and it cannot be permitted to be proved by that party in its own evidence.
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. Once it is held that a litigant is entitled to such right, in my view it would be too harsh to make the same subject to the condition that the litigant would thereafter be deprived of the right to prove the said documents himself. Thus, if the witness to whom the document is put in cross examination fails to admit the document, the party so putting the document, in its own evidence would be entitled to prove the same. However, the same should not be understood as laying down that such party for the said reason and to prove the said document would be entitled 5 to lead evidence which otherwise it is not entitled to as per scheme of CPC and evidence law. For instance, if the document is shown by the defendant to the plaintiffs witness and the plaintiffs witness denies the same, the defendant can prove the document in his own evidence. Conversely, if the plaintiff puts the document to the defendant's witness and the defendant's witness denies the same, the plaintiff if entitled to lead rebuttal evidence would in his rebuttal evidence be entitled to prove the same. However, if the plaintiff has no right of rebuttal evidence in a particular case, the plaintiff would not be entitled to another chance to prove the document. In such a case, the plaintiff has to make a choice of either relying upon the surprise element in showing the document or to file the document along with its pleadings and/or before the settlement of issues and to prove the same. Similarly, if the defendant chooses to confrontthe document to the plaintiff's witness in rebuttal, merely because the witness denies the document would not entitle the defendant to a chance to prove the document subsequently.
12. I may however put a line of caution over here. It is often found that a party which has otherwise failed to file documents at the appropriate stage, attempts to smuggle in the documents in the evidence of the witness of the adversary by putting the documents to thewitness whether relevant to that witness or not. The court should be cautious in this regard. (Only those documents with which the witness is concerned and/or expected to know oranswer ought to be permitted to be put to the witness in the cross examination). If other documents with which the witness is not concerned are confronted only in an attempt to have the same filed and to thereafter prove the same, the court would be justified in clarifying that the document is taken on record only for the purpose of cross examination and the producing party would not be entitled to otherwise prove the same, having not filed it at the appropriate stage. • Shri Mahesh v. Shri ravinder Shantinath Chougule Writ Petition No. 67848/2012(GM-CPC) dated 06.12.2012, it was observed by Hon'ble High Court of Karnataka " 3. It is settled proposition of law that a document can be confronted in cross examination of a witness. If the witness admits the execution of the document sought to be confronted, then the same can be marked in evidence. If the document is not admissible in evidence, then the same cannot be marked...."
6• Laxmikant Sinal Lotlekar v. Raghuvir Sinai Lotlekar, 1984 SCC OnLine Bom 228
5. Order XIII, Rule 2(1) provides that no documentary evidence in the possession or power of any party, which should have been but has not been produced in accordance with the requirements of Rule 1, shall be received at any subsequent stage of the proceedings, unless good cause is shown to the satisfaction of the Court for the non-production thereof; and the Court receiving any such evidence shall record the reasons for so doing. Sub-rule (2) provides that nothing in sub-rule (1) shall apply to documents (a) produced for the cross-examination of the witnesses of the other party, or
(b) handed over to a witness merely to refresh his memory. It would appear from the reading of the aforesaid provisions of law that, under sub-rule (2), it will be permissible to produce for cross-examination of a witness of the other party any kind of document, provided of course that such document is admissible. However, one has to read these provisions of law in the context of the Orders VII and VIII Civil Procedure Code. Order VII deals with a plaint and in Rule 14 provides that where a plaintiff sues upon a document in his possessions power, he shall produce it in Court when the plaint is presented and shall at the same time deliver the document or a copy thereof to be filed with the plaint. Sub-rule (2) provides for a list of other documents and lays down that where the plaintiff relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint. Then, Rule 18 provides that a document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint, and which is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. Sub-rule (2) provides that nothing in the relevant rule applies to documents produced for cross-examination of the defendant's witnesses, or in answer to any case set up by the defendant or handed to a witness merely to refresh his memory. In its turn, Order VIII, Rule 1 postulates that the defendant shall, at or before the first hearing or within such time as the Court may permit, present his written statement of defence, and sub-rule (2) lays down that save as otherwise provided in Rule 8A, where the defendant relies on any document (whether or not in his possession or power) in support of his 7 defence or claim for set-off or counter-claim, he shall enter such documents in a list. Then, sub-rule (5) prescribed that a document which ought to be entered in the list referred to in sub-rule (2), and which is not so entered, shall not, without the leave of the Court, be received in evidence on behalf of the defendant at the hearing of the suit. And sub-rule (6) provides that nothing in sub-rule (5) shall apply to documents produced for the cross- examination of plaintiffs witnesses or in answer to any case set up by the plaintiff subsequent to the filing of the plaint, or handed over to a witness merely to refresh his memory. Reading together the above provisions of Order VII and VIII with the provisions of Order XIII, it would appear that, in fact, if the provision of sub-rule (2) of Rule 2 of Order XIII is read liberally and as an omnibus provision, then, the provisions of Order VII, Rules Hand 18(1) and Order VIII, Rule 1, sub-rules (2) and (5) will become nugatory. Now, if this would be the result of such a liberal interpretation of Order XIII, Rule 2(2), it is obvious that the same construction is erroneous, for no provision of law should be interpreted in a manner that other provisions will be nullified. In fact, provisions of the law are not superfluous, having therefore to be construed harmoniously and in a manner that each of them has a meaning and a significance.
6. I have thus no doubt whatsoever in holding that the provision of Order XIII, Rule 2(2) Civil Procedure Code is to be read in a restrictive mannner and that it applies only to some classes of documents a party intends to produce by way of cross-examination, and not to all the documents though otherwise admissible in evidence. It is indeed clear from the scheme of the Code that the legislature had intended that the plaintiff and the defendant, respectively, should produce the documents on which they rely upon to prove their cases when such documents are in their possession, and in any event, they should file a list of documents on which they rely in order to prove their own case. These provisions of law are manifestly meant, on one hand, to prevent suspicious documents to be introduced in evidence by way of cross-examination, or on the other, to prevent manufacture or fabrication of false documents. They are also meant to give a fair opportunity to a party to meet the case of his adversary by not being taken by surprise. In my opinion, the true and correct interpretation of Order XIII, Rule 2(2) Civil Procedure Code is that the only documents which can be produced in cross-examination are those which are outside the case of each of the parties and those meant to refresh the witness's memory. This view appears to be correct, considering the language of 8 Order VII, Rule 18(2) and Order VIII, Rule 1(6) Civil Procedure Code. I say so because in sub-rule (2) of Rule 18 of Order VII, it is provided that sub-rule (1) does not apply to documents produced for cross-examination of the defendant's witnesses, or in answer to any case set up by the defendant or handed to a witness merely to refresh his memory. And Order VIII, Rule 1(6) Civil Procedure Code provides that the provision of sub-rule (5) shall not apply to documents produced for the cross-examination of plaintiffs witnesses or in answer to any case set up by the plaintiff subsequent to the filing of the plaint to a witness merely to refresh his memory. Now, reading together the aforesaid Rule 18(2) and Rule 1(6) of Orders VII and VIII, respectively, it would appear that the expression 'subsequent to the filing of the plaint', occurring in sub-rule (6) of Rule 1 of Order VIII, gives the key to the problem and indicates that what the legislature meant is that, if a plaintiff advances something new after the filing of the plaint, or if a defendant does so after the filing of the written statement, his adversary in the suit will be entitled to confront him with a document concerning the new case advanced by him. Also naturally, in view of the clear language of Order XIII, Rule 2(2), documents can be produced for the purpose of refreshing the memory. This part of sub-rule (2) is, however, to be read in the context of the provisions of Section 145 to Section 161 of the Evidence Act.
5. Coming to the present case in hand, it is pertinent to state in here that defendant in his written statement has also averred that "plaintiff got better option". Plaintiff, after the filing of written statement filed by the defendant, has not placed on record any document to refute the said contention and it is only at the time of cross examination that plaintiff seeks to confront the defendant with the said lease deed.
6. Perusal of said document clearly reveals that said document is neither filed by the defendant, neither defendant is concerned with the same. Further also it cannot be said that defendant has pleaded some new case during his evidence. Legal preposition as discussed above allowed a party to confront the witness with documents not placed them on record at the time of filing of pleadings.
97. Considering the law and facts discussed above, as defendant has stated that "plaintiff got better option in his affidavit", plaintiff is allowed to put said document to the defendant witness during cross examination. However, as plaintiff himself chooses to retain the said document at the time of filing of his pleadings or at the time of leading his evidence and produced the same only at the time of cross examination, said document is taken on record only for the purpose of cross examination and plaintiff will not be entitled to prove the same.
( Anubhav Jain ) Civil Judge-05, Central District Tis Hazari Courts, Delhi 19.08.2015 10 CS No. 757/14 19.08.2015 Present: None.
Vide my separate order of even date, the objections raised by counsel for the defendant during the cross examination of defendant are disposed off.
Counsel for the plaintiff is allowed to confront with the said documents to the witness however said document is taken on record only for the purpose of cross examination and plaintiff will not be entitled to prove the same.
To come up on 13.10.2015 for remaining DE.
( Anubhav Jain ) Civil Judge-05, Central District Tis Hazari Courts, Delhi 19.08.2015