Civil Rev. Appln. No. 550 of 1990

11th February, 1999

Petitioner Counsel: Shri. M. B. SABNIS
Respondent Counsel: Shri. D. R. BHADEKAR

Cases Cited:
Melappa Vs. Guramma , AIR 1956 Bom. 123 [Para 7]

JUDGMENT

JUDGMENT :- Heard learned counsel for the parties.

2. The order under challenge is dated 27-6-1990 passed by the Joint Civil Judge, Senior Division, Aurangabad below Exhibit 285 from H.M.P. No. 39 of 1983.

3. The application at Exhibit 285 has been preferred by the petitioner in H.M.P. No. 39 of 1983 for production of documents wherein it has been stated that these documents are not produced as they were reserved for putting them in the cross-examination of the witness of the respondent and therefore they be allowed to be produced and exhibited.

4. The question of exhibiting these documents cannot be considered while granting production of documents because unless and until the documents is proved by leading evidence by the party who relies on that documents and/or admitted by the other side, it cannot be exhibited. In the present case, the evidence of the petitioner is over and therefore, there is no question of proving those documents by the petitioner himself. However, the production of these documents has to be considered by the Court and that order can very well be passed. However, the production of these documents is being objected because according to the respondents these documents should have been produced prior to the settlement of the issues. If they are not produced at that time, there should have been sufficient and good ground shown for non production of these documents at that stage. Thereby the objection for production at the stage when they are produced. Therefore it is submitted by the learned Counsel for the respondent that the application does not contain any good and sufficient grounds for non production of these documents at appropriate stage.

5. The trial Court has considered these arguments and has rejected the application.

6. So far as the ground of the respondent that the petitioner should have shown good and sufficient reasons for non-production of these documents is without any merits because Order VII Rule 18(2) and order XIII Rule 2(ii) permits the party to reserve the documents. Order VII Rule 18(2) permits the plaintiff to reserve the document and Order XIII Rule 2(ii) permits both the parties to reserve the document for the purposes stated in those rules, namely for the purposes of cross-examination and for refreshing the memory of the witness. Order VII Rule 18 sub rule (2) in addition to the above stated two purposes further allows the reservation of the document even in answer to any case set up by the defendant. Under these circumstances, when the document is so reserved and produced while in the cross-examination the Court cannot object the production of that document. On the contrary, the production has to be allowed, and therefore, the reasoning given by the trial Court that good grounds should have been shown by the petitioner is not correct.

7. Earlier to 1956 there were no sub-rules to Order VII Rule 18 and Order XIII Rule (2). In the absence of this, the Court has allowed the use of documents under section 145 for confrontation. In A.I.R. 1956 Bombay 123 in the case of Melappa Vs. Guramma it has been observed as under:

"If a party wants to rely upon a letter as evidence it is upto him to produce the letter at the initial stage or to produce it at subsequent stage upon good cause being shown. When the letter is put to a witness to contradict his testimony, it cannot be used as a substantive evidence."

Therefore in the absence of proof when the document is being produced in the cross-examination, that document unless admitted by the other party, cannot be a substantive evidence. Apart from that the documents which are used for the purposes of contradiction under section 145 of Evidence Act that contradicted documentary evidence cannot be a substantive evidence but it is only used for the purposes of impeaching the witness, and therefore, the trial Court should have permitted the documents to be produced on record.

8. The whole purpose of the reservation of the document for the cross-examination is either to impeach the witness by pointing out his conduct and/or to see that the witness is suddenly caught up and thereby the facts which he otherwise has denied are immediately accepted and thereby truth stands unfolded. However, that purpose is now over. These documents have been produced long back and they are on record since years together and therefore, the witness to whom they were intended to be confronted is now aware of these documents and therefore, he is in a position to give appropriate replies. Therefore, the whole efficacy of the idea of reserving the document for cross-examination has been lost and they are the documents like any other documents produced on record. Therefore, there is no harm in allowing the production of these documents. However, it is made clear that only production is allowed, the exhibition of these documents will depend upon either the admission given by the party and/or of the proof by the plaintiff. Needless to say that these documents will not go into the evidence unless they are relevant to the fact in issue and/or relevant facts. At this stage, Mr. Bhadekar, learned counsel for the respondent made a submission that amount of interim alimony since 1990 has not been paid and so also the expenses have also not been paid. The trial Court is directed to see that the respondent wife is not put to the prejudice as a result of non payment of these amounts.

9. With these observations, the Civil Revision Application is allowed. The order of the trial Court is set aside. Rule made absolute accordingly.

In the facts and circumstances of the case, there shall be no order as to costs.

Revision allowed.