Writ Petition No. 6931 of 2019

20th February 2020

Petitioner Counsel: Mr. V.D. Muley
Respondent Counsel: Mr. N.B. Kalwaghe
Act Name: Code of Civil Procedure, 1908 Evidence Act, 1872

Section :
Section 3 Evidence Act, 1872 Section 118 Evidence Act, 1872 Section 120 Evidence Act, 1872 Section 137 Evidence Act, 1872 Section 138 Evidence Act, 1872

Cases Cited :
Paras 6, 7, 9, 10, 11, 14 , 16, 17, 18, 20: Purshottam s/o Shankar Ghodegaonkar Vs. Gajanan S/o Shankar Ghodegaonkar and others, 2012(6) Mh.L.J. 648
Paras 7, 8, 9, 10, 11, 16, 17, 18, 20: Vinayak M. Dessai Vs. Ulhas N. Naik and others, 2018(2) Mh.L.J. 348
Paras 10, 11, 17: Upper India Couper Paper Mills Co. Ltd. Vs. M/s Mangaldas and Sons, 2004(4) Mh.L.J. 992

JUDGEMENT

Although these two writ petitions were heard on different dates and closed for orders on different dates and the petitions are otherwise not connected with each other, but, since common issues arise in these petitions, in respect of which there appears to be conflict of opinions, this Court is passing common order in these petitions.

2. In Writ Petition No. 7717/2019, the petitioner before this Court is the original plaintiff, while in Writ Petition No. 6931/2019, the petitioners are the original defendants No. 1 and 2. The impugned orders in both the writ petitions have been passed at the stage of cross-examination of a party in pending suits. In Writ Petition No. 7717/2019, the petitioner (original plaintiff) has challenged an order dated 04/11/2019, passed by the Trial Court, whereby an application filed by the petitioner (original plaintiff) seeking leave of the Court to produce certain documents and to confront the respondent No.1 therein (original defendant No.1), with such documents at the stage of cross-examination has been rejected.

3. In Writ Petition No. 6931/2019, the defendants No.1 and 2 have approached this Court, challenging an order passed by the Trial Court, whereby an application filed by the respondents (original plaintiffs) for production of documents at the stage of cross-examination of the petitioners therein (original defendants), has been allowed.

4. This Court is not referring to the facts pertaining to the two writ petitions in detail because the counsel representing the rival parties in the two writ petitions argued on a common issue, as to whether the provisions of Order VII Rule XIV, Order VIII Rule 1-A, in the light of Order XIII Rule 1 of the Code of Civil Procedure, 1908 (CPC), were applicable not only to the witness in a suit, but, also to the parties to the suit i.e. plaintiffs and defendants. A contention was raised in these writ petitions that a “party” could not be equated with a “witness”, and, therefore, Order VII Rule 14(4), Order 8 Rule 1-(A)(4)(a) and Order XIII Rule (1)(3) (a), would be available only when evidence of a witness was being recorded and not when evidence of the parties to the proceedings i.e. plaintiffs and defendants, was being recorded.

5. Another issue argued in these petitions was, as to whether a document could be produced during crossexamination of either the plaintiff or defendant to confront them or that no such permission could be granted as it would amount to springing a surprise on the party at the stage of cross-examination.

6. During the course of arguments made by learned counsel appearing for rival parties in these writ petitions, a reference was made to judgment of this Court in the case of Purshottam s/o Shankar Ghodegaonkar Vs. Gajanan S/o Shankar Ghodegaonkar and others 2012(6) Mh.L.J. 648. In the said judgment, a learned single Judge of this Court considered Order XIII Rule 1(3)(a) of the CPC and held as follows:
“Therefore, on careful reading of the said provisions, would make it abundantly clear that the documents other than the documents as contemplated under sub-rule (3)(a), the said production can be allowed for cross-examination of the witnesses of the other party. On plain reading of the said provision, it is abundantly clear that such production of documents which is at later stage of the proceeding and not prior to the framing of the issues, can be produced in the cross-examination of the witnesses of other party but the said Rule does not contemplate that such document can be produced for the cross-examination of the party. As rightly contended by the counsel appearing for the petitioner, this Court in Writ Petition No. 869 of 1997, relying upon the judgment of the Jammu and Kashmir High Court in the case of Union of India (supra) has taken a view that there is distinction in the term witness and a party to the suit. The party to the suit cannot be equated with the witness and cannot be confronted with a document by casting surprise upon him, particularly when the documents were not filed by the plaintiff along with the list of documents on which he is going to rely upon.
7. Therefore, in view of the earlier order passed by this Court, wherein the plaintiff and defendant were party, the trial Court could not have taken a different view. The order in Writ Petition No. 869 of 1997 has attained the finality, which is binding upon the parties. That apart, the view taken by this Court in the said writ petition, is confirmed in review Application No. 171 of 2009 in Writ Petition No. 5632 of 2005 by this Court. While deciding the review application, this Court observed that the judgment and order passed in Writ Petition No. 869 of 1997 has attained finality and the said writ petition was between the same parties, who are party to the subsequent writ petition and also to the review and therefore, the said order is binding upon the parties.
8. Therefore, in my opinion, as long as, the judgment and order in Writ Petition No. 869 of 1997 is in force and admittedly not challenged by either of the parties, it was not open for the trial Court to allow production of documents to confront the original defendant i.e. the petitioner herein. It is different matter if the production is allowed for confronting the witnesses of the party. This Court is not inclined to express any opinion about the said aspects and it is left open for the parties to take appropriate proceeding in that respect. However, as concluded by this Court in Writ Petition No. 869 of 1997, the defendant i.e. petitioner herein cannot be confronted by the plaintiff by producing documents during the course of cross-examination. In view of the above observations, writ petition deserves to be allowed.”

7. Subsequently, a learned single Judge of this Court in the case of Vinayak M. Dessai Vs. Ulhas N. Naik and others 2018(2) Mh.L.J. 348, had the occasion to refer to Order VII Rule 14, Order VIII Rule 1-A and Order XIII Rule 1(3) of the CPC. In the said case, it was specifically submitted by the learned counsel appearing for the respondent therein that the view taken in the aforesaid case of Purshottam s/o Shankar Ghodegaonkar (supra) was required to be referred to a Larger Bench.

8. But, the learned single Judge in the case of Vinayak M. Dessai (supra) held that there was no need to make any such reference to a Larger Bench. Yet, the learned single Judge made the following observations in the said judgment of Vinayak M. Dessai (supra).
“Evidence in terms of section 3 of the Evidence Act, 1872 means and includes all statements which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry; such statements being called oral evidence and all documents including electronic records produced for the inspection of the Courts being the documentary evidence. Section 118 of the said Act provides for the persons who may testify and reads that all persons must be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Section 120 provides that parties to the civil suit and their wives or husbands or husband or wife of person under criminal trial shall be competent witnesses while section 137 deals with the examination in chief of a witness by the party who calls him for his examination, the cross-examination being by the adverse party and re-examination being subsequent to cross-examination by the party who called him. However, a discussion of these relevant provisions of the Evidence Act no doubt substantiate the contention of Shri Pangam, learned Advocate for the Respondents, that if a party is not a witness, it would lead to a disastrous interpretation and even to the extent that section 137 of the Evidence Act may not apply to a party and which could defeat the purpose of examination and cross-examination. Nonetheless, the discussion on the point is purely academic looking to the law on the point namely Order VII, Rule 14, Order VIII Rule 1 and Order XIII, Rule 1 of the Civil Procedure Code. Besides, if an interpretation as canvassed by Shri Pangam is accepted, the provisions of Order VI, Order VIII and Order XIII would be rendered nugatory and as observed in Laxmikant Sinai Lotlekar (supra). The learned trial Court therefore was in jurisdictional error to disallow the objections raised by the petitioner-plaintiff contrary to the mandate of Order VIII, Rule 1 and Order XIII, Rule 1(3)(a) of the Civil Procedure Code. The Respondents had to follow the mandate as contained in Order VIII, Rule 1 of the Civil Procedure Code and could not seek to produce such documents directly during the cross-examination of the plaintiff which it had to otherwise rely upon in a list of documents as required by law. The learned trial Court therefore committed a jurisdictional error and therefore the impugned Order calls for an interference.”

9. A perusal of the above quoted portion of the judgment in the case of Vinayak M. Dessai (supra) shows that observation was made to the effect that if a party was not to be a witness it would lead to a disastrous interpretation to the extent that even Section 137 of the Evidence Act, 1872, may not apply to a party, which could defeat the purpose of examination and cross-examination. This observation is directly contrary to the observations made in the above quoted portion of the judgment of a learned single Judge of this Court in the case Purshottam s/o Shankar Ghodegaonkar (supra), wherein it has been categorically laid down that the party to a suit cannot be equated with a witness and cannot be confronted with documents by casting surprise upon him, particularly when the documents were not filed along with the list of documents. Thus, there is an obvious cleavage of views in the aforesaid two judgments of learned single Judges of this Court on the said issue i.e. whether a “party” is also a “witness”.

10. The observations made by the learned single Judge in the cases of Purshottam s/o Shankar Ghodegaonkar (supra) and Vinayak M. Dessai (supra) on the question as to whether a document can be produced directly at the stage of cross-examination of a party or a witness and that it would amount to springing a surprise on such party or witness, are also contrary to what has been laid down by a learned single Judge of this Court in the case of Upper India Couper Paper Mills Co. Ltd. Vs. M/s Mangaldas and Sons 2004(4) Mh.L.J. 992. In the said judgment, the learned single Judge of this Court, after quoting Order VIII Rule 1-A of CPC, has observed as follows :
“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 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 plaintiff’s witness.”

11. The law laid down by the learned single Judge in the above quoted portion of the judgment in the case of Upper India Couper Paper Mills Co. Ltd. (supra), is directly in conflict with the observations made by the learned single Judges on this issue in the cases of Purshottam s/o Shankar Ghodegaonkar (supra) and Vinayak M. Dessai (supra).

12. In this backdrop, I heard the learned counsel appearing for rival parties in these two writ petitions and it became evident that on both issues i.e. whether a “party” can be equated with a “witness” and whether a document can be produced directly at the stage of cross – examination to confront a party as well as witness, with reference to Order VII Rule 14, Order VIII Rule 1-A and Order XIII Rule 1 of the CPC, there is a conflict of opinions.

13. These provisions read as follows :
“Order VII – Plaint
Rule 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, where possible, state in whose possession or powers 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 – Written statement, set-off and counter-claim
Rule 1-A : Duty of defendant to produce documents upon which relief is claimed or relied upon by him –
(1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counter-claim, he shall enter such document in a list, and shall, 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, whereever 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 -
(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 – Production, impounding and return of documents
Rule 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.]”

14. On the question as to whether a party can be equated with a witness or that a party is also witness in proceedings under the CPC read with Evidence Act, 1872, with great respect, I am unable to agree with the finding given in the case of Purshottam s/o Shankar Ghodegaonkar (supra), quoted above, wherein it has been stated that a party to a suit cannot be equated with a witness and cannot be confronted with documents directly at the stage of cross examination by casting surprise upon him. This is because a party to a suit does appear as a witness in a suit in support of pleadings. In fact, Section 118 of the Evidence Act, 1872, specifies as to who may testify in a Court. It provides that all persons shall be competent to testify unless the Court considers that they are physically or mentally unfit to understand the questions put to them or they are unable to give rational answers to the questions. Section 120 of the Evidence Act, 1872, specifies that in all civil proceedings the parties to the suit shall be competent witness. Sections 137 and 138 of the Evidence Act, 1872, specifies the sequence in which examination, cross-examination and re-examination of a witness has to be conducted and it would be a travesty to hold that such rules of evidence and procedure would apply to a witness, but, not to a party to the suit.

15. Apart from this, Order XVIII Rules 4, 5 and 7 of CPC provide for the manner in which examination-in-chief in the form of affidavit is to be placed on record and how cross-examination can be conducted on the basis of such examination-in-chief. The word ‘witness’ is used in these provisions. To say that the said provision would apply to a witness and not to a party would lead to a situation where the examination-in-chief of a witness could be placed on record by way of affidavit, while if a party is not to be equated with a witness or it is held that party is not a witness in a suit, the said provision may not apply, leading to incongruous and unsustainable consequences.

16. Perhaps, these aspects were not brought to the notice of the learned single Judge of this Court when judgment in the case of Purshottam s/o Shankar Ghodegaonkar (supra) was delivered. In the case of Vinayak M. Dessai (supra), the learned single Judge of this Court did note the disastrous consequences that would follow if a party was not to be treated as a witness in a suit and yet, the learned single Judge of this Court was of the opinion that the matter did not require reference to a Larger Bench. In my opinion, a harmonious reading of Order VII Rule 14, Order VIII Rule 1 and Order XIII Rule 1 of the CPC, would indicate that a party to a suit is also a witness and, therefore, no distinction between the two can be made while applying rules of procedure enunciated in the aforesaid provisions for application of the relevant rules of evidence manifested in the provisions of the Evidence Act, 1872.

17. As regards the other issue that arises for consideration, there appears to be direct conflict in the observations made in the above quoted portions of the judgments of the learned single Judges in the cases of Purshottam s/o Shankar Ghodegaonkar (supra) and Vinayak M. Dessai (supra), on the one hand and those made by the learned single Judge in the case of Upper India Couper Paper Mills Co. Ltd. (supra). While in the judgments in the cases of Purshottam s/o Shankar Ghodegaonkar (supra) and Vinayak M. Dessai (supra), the learned single judges of this Court have laid down that documents cannot be produced directly at the stage of cross-examination for confronting a witness so as to spring a surprise upon him / her, in the case of Upper India Couper Paper Mills Co. Ltd. (supra), the learned single Judge has held that the words ‘nothing in this rule’ used in Order VIII Rule 1-A of the CPC demonstrate that a document can be produced directly at the stage of cross-examination and that there was no necessity of furnishing such document in advance to the witness, to ensure potency and effectiveness of cross-examination.

18. Having perused the above quoted provision of Order VII Rule 14, Order VIII Rule 1-A(4) and Order XIII Rule 1(3) of the CPC, in my opinion the use of the words ‘nothing in this rule / sub-rule’, indicates that documents can certainly be produced directly at the stage of cross-examination of a party or a witness so as to confront him / her and that this would be necessary for effective cross-examination of the party or witness. But, the observations made by learned single Judges in the cases of Purshottam s/o Shankar Ghodegaonkar (supra) and Vinayak M. Dessai (supra), appear to be holding a contrary view and, therefore, there appears to be conflict of opinions with reference to the said issue also.

19. In view of the above noted conflict of opinions on the aforesaid issues, the said issues need to be referred to a Larger Bench for an authoritative pronouncement.

20. In view of above, the papers of these petitions be placed before the Hon’ble Chief Justice to consider referring the following questions to a Larger Bench for an authoritative pronouncement :

Question 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”?
Question 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?
Question 3 :
Whether the observations made in the judgment in the cases of Purshottam 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 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?

21. Order accordingly.