By Adv. R. S. Agrawal 

 

 

THROUGH the judgement in the case-Mohammed Abdul Wahid v. Nilofer and Another delivered on December 14, 2023, Justices Bhushan R Gavai and Sanjay Karol have held at the Supreme Court that a reading of the judgements cited during hearing would imply that substance is what the courts need to look into, and therefore, in reference to the production of the documents, in the considered view of the Supreme Court so long as the document is produced for the limited purpose of effective cross-examination (‘X’) 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 into the face of this established proposition. Save and except the cross-examination part of a civil suit, at no other point shall such confrontation be allowed, without such document having accompanied the plaint or written statement filed before the Court. For this purpose, reference can be made to Order VII Rule 14(4) (This Rule speaks of the plaintiff necessarily listing in his plaint and, producing before the, the documents upon which they seek to place reliance in defence of his claim for set-off or counterclaim.

 

Sub-rule (4) exempts from this obligation documents produced for the limited purpose of Cross-Examination (‘X’) or to jog the memory of a witness), and Order XIII Rule 1(3) (This Rule speaks of either party or their pleaders obligatorily producing, post the settlement of issues in a suit, the documentary evidence upon which reliance is placed. Sub-rule (3) Exempts from this obligation documents produced for the limited purpose of ‘X’ or jog the memory of a witness), all three of which, while dealing with production of documents by the plaintiff, defendant and in general, respectively, exempts documents to be produced for the limited purpose of ‘X’ or jogging the memory of the witness. According to the Supreme Court, it has been called upon to adjudicate and answer two questions: 1. Whether under the Code of Civil Procedure (CPC), there is envisaged, a difference between a party to a suit and a witness in a suit? In other words does the phrase plaintiff’s/ defendant’s witness exclude the plaintiff or defendant themselves, when they appear as witnesses in their own cause? 2. Whether, under law, and more specifically, Order VII Rule 14; Order VIII Rule 1-A etc. enjoin the party undertaking ‘X’ of a party to a suit from producing documents, for the purposes thereof, by virtue of the use of the phrase(s) plaintiff/defendant’s witness or witnesses of the other party, while cross-examining the opposite party? The Supreme Court has observed that while adjudicating this appeal the foremost thought in its mind is that every trial is “a search of truth”.

 

In this appeal, in which, exception has been taken to a judgement delivered by the Nagpur Bench of the Bombay High Court by which the division bench had answered three questions framed by a Single Judge Bench in view of the two allegedly conflicting S B decisions Vinayak M Desai v. Ulhas N Naik and Others-2017 SCC OnLine Bombay 8515 and Purushottam v. Gajanan-2012 SCC OnLine Bombay 1176. In the case of Purushottam the HC had held that it was not open for the trial court to allow production of documents to confront the original defendant, that is the petitioner herein. It is different matter if the production is allowed for confronting the witnesses of the party. In the case of Vinayak M. Dessai it had been observed that the respondents had to follow the mandate as contained in Order VIII Rule 1 of the CPC and could not seek to produce such documents during the ‘X’ of the plaintiff which otherwise it had to rely upon a list of documents, as required by law. The trial court, had therefore, committed a jurisdictional error and therefore, the impugned order in the appeal calls for interference.

 

The High Court’s judgement is detailed one. In answer to the question -1, The SC has negated the proposition that that the law differentiates between a party to a suit and a witness for the purposes of evidence. It is settled law 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 is equally well settled that the requirement of having to plead a particular argument does not include exhaustively doing so. In the light of the discussion and answer in the negative to the first question before the Supreme 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, production of documents for both a party to the suit and witness as a case may be, at the stage of cross-examination (‘X’), is permissible within law. The Supreme Court has allowed the appeal. The SC has clarified that save and except the ‘X’ part of a civil suit, at no other point shall such confrontation should be allowed, without such document having accompanied the plaint or written statement filed before the court.

 

All three of which, 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 ‘X’ or for refreshing memory of the witness. In the “considered view “of the SC, so long as the document is produced for the limited purpose of effective cross-examination or to jog the memory of a 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 the established proposition. The Supreme Court has set aside the judgement of the Nagpur Bench of the Bombay High Court in WP No. 7717 of 2019 (Md. Abdul Wahid v. Smt. Nilofer) and WP 6931/2019, delivered on February 9, 2021. The SC has restored the original petition to the HC’s file for decision on merits in accordance with law decided in this appeal by the Supreme Court. Senior counsel Huzefa Ahmadi with Advocates Masood Shareef and Satyajit Dessi appeared for the petitioner. Dr. R S Sundaram represented the respondent.