In CIVIL APPEAL NO.8146 OF 2023-SC- Production of documents for both party to the suit and witness at the stage of cross-examination is permissible within law, rules Apex Court
Justices B.R. Gavai & Sanjay Karol [14-12-2023]

Read Order: MOHAMMED ABDUL WAHID v. NILOFER & ANR

Tulip Kanth

New Delhi, December 19, 2023: In a case pertaining to the Code Of Civil Procedure, 1908, the Supreme Court has declared that there is no difference between a party to a suit as a witness and a witness simpliciter and production of documents for both a party to the suit and a witness, at the stage of cross-examination, is permissible within law.

The two questions before the Division Bench of Justice B.R.Gavai and Justice Sanjay Karol were as follows-

• Whether under the Code of Civil Procedure, there is envisaged, a difference between a party to a suit and a witness in a suit.
• Whether, under law, and more specifically, Order VII Rule 14; Order VIII Rule 1-A; Order XIII Rule 1 etc, enjoin the party under-taking cross examination of a party to a suit from producing documents, for the purposes thereof, by virtue of the use of the phrase plaintiff/defendants witness or witnesses of the other party, when cross examining the opposite party.

The Top Court was considering an appeal challenging a judgment delivered by the Bombay High Court (Nagpur Bench) by which the Division Bench had answered three questions framed by a Single Judge of that Court in view of the two allegedly conflicting decisions, viz. Vinayak M Dessai v. Ulhas N. Naik and Ors. and Purushottam v. Gajanan.

The High Court had held that a party cannot be equated to a witness as their characters are different. Considering the legislative intent of Order VII Rule 14 Sub-Rule (4), Order VIII Rule 1-A(4)(a) and Order XIII Rule 1(3) of C.P.C. as well as others, it was observed that the legislature has created an exception towards the documents being produced for cross-examination of witnesses of the other party to allow confrontation of witnesses by catching such person unawares in order to bring out the truth on record.

Referring to Order XVIII Rule 3A & State of Bombay v. Kathi Kalu Oghad, the Bench opined that that witnesses and parties to a suit, for the purposes of adducing evidence, either documentary or oral are on the same footing. The presence of these provisions also begs the question that if the legislature had the intent to differentiate between a party to a suit as a witness, and a witness simpliciter, it would have done so, explicitly, the Bench added.

The Bench also held that that the provisions of the Code as also the Evidence Act do not differentiate between a party to the suit acting as a witness and a witness otherwise called by such a party to testify. According to the Bench, the term witness does not exclude the party to the suit i.e., the Plaintiff or the Defendant, themselves appearing before the court to enter evidence.

The Top Court observed that the freedom to produce documents for either of the two purposes i.e. cross examination of witnesses and/or refreshing the memory would serve its purposes for parties to the suit as well.

Additionally, the Bench noted that being precluded from effectively putting questions to and receiving answers from either party to a suit, with the aid of these documents will put the other at risk of not being able to put forth the complete veracity of their claim- thereby fatally compromising the said proceedings. Therefore, the proposition that the law differentiates between a party to a suit and a witness for the purposes of evidence was negated by the Bench.

Referring to Ram Sarup Gupta v. Bishun Narain Inter College, the Bench reiterated that what is not pleaded cannot be argued, as for the purposes of adjudication, it is necessary for the other party to know the contours of the case it is required to meet. It was reaffirmed that the requirement of having to plead a particular argument does not include exhaustively doing so.

Furthermore, reliance was placed upon Udhav Singh v. Madhav Rao Scindia and it was observed that so long as the document is produced for the limited purpose of effective cross-examination or to jog the memory of the witness at the stand is not completely divorced from or foreign to the pleadings made, the same cannot be said to fly in the face of this established proposition.

It was also clarified by the Bench that the provisions namely Order VII Rule 14(4), Order VIII Rule 1A(4)(a) & Order XIII Rule 1(3) while dealing with the production of documents, by the plaintiff, defendant and in general, respectively, exempt documents to be produced for the limited purpose of cross-examination or jogging the memory of the witness.

Therefore, the Bench allowed the appeal and concluded the matter by saying, “In light of the above discussion, and the answer in the negative to the first question before this court, meaning thereby that there is no difference between a party to a suit as a witness and a witness simpliciter- the second issue in this appeal, in view of the provisions noticed above, production of documents for both a party to the suit and a witness as the case may be, at the stage of cross-examination, is permissible within law.”