Finding there to be an apparent conflict between the abovestated two judgments on the issue of the difference, if any, between the party to a suit and a witness in a suit on the one hand and, also with respect to when it may be permissible to produce documents directly at the stage of the cross-examination (Para 5.2)
In the above backdrop, the questions we have been called upon to adjudicate on are:
(a) Whether under the Code of Civil Procedure, 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?
(b) 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(s) plaintiff/defendant’s witness or witnesses of the other party, when cross examining the opposite party? (Para 7)
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 be made to Order VII Rule 14(4)(This Rule speaks of the plaintiff necessarily listing in his plaint and, producing before the court, the documents upon which they seek to place reliance, in support of his claim. Sub-rule 4 exempts from this obligation documents produced for the limited purpose of cross-examination or to jog the memory of a witness), Order VIII Rule 1A(4)(a) (This Rule speaks of the defendant necessarily listing in his Written Statement and, producing before the court the documents upon which they seek to place reliance, in defense of his claim for setoff or counterclaim. Sub-rule 4 exempts from this obligation documents produced for the limited purpose of cross-examination 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 cross-examination or to jog the memory of a witness), 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 cross-examination or jogging the memory of the witness. (Para 31)
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. (Para 32)
SUPREME COURT OF INDIA
2023 STPL(Web) 477 SC
[2023 INSC 1075]
Mohammed Abdul Wahid Vs. Nilofer & Anr.
Civil appeal no. 8146 of 2023 (Arising out of Special Leave Petition (Civil)No.14445 of 2021)-Decided on 14-12-2023
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