Introduction
The Hon’ble Supreme Court, vide its recent judgment in Mohammed Abdul Wahid v. Nilofer & Anr.,[1] adjudicated inter alia upon whether the Code of Civil Procedure, 1908 (“CPC”) makes a distinction between a ‘party to a suit’ and a ‘witness in a suit’ through its adopted phraseology? More specifically, whether a party to a suit i.e. a plaintiff or a defendant may be equated to a witness when interpreting the provisions of Order VII Rule 14 [Production of document on which plaintiff sues or relies]; Order VIII Rule 1A(4)(a) [Duty of Defendant to produce documents upon which relief is claimed or relied upon by him]; and Order XIII Rule 1(3)(a) [Original Documents to be produced at or before the settlement of issues] of the CPC?
The Apex Court, through Hon’ble Mr. Justice Sanjay Karol, held that “witness and parties to a suit, for the purposes of adducing evidence, either documentary or oral are on the same footing.”[2]Accordingly, (i) there is no distinction carved out by the provisions of the CPC between a ‘party to a suit as a witness’ and ‘a witness simpliciter’; and (ii) documents may be produced to confront both a ‘party to a suit’ and ‘witness in a civil trial’ at the stage of cross-examination.
Background:
Mohammed Abdul Wahid (“Original Plaintiff/Appellant”) sought a writ petition[3] before the High Court of Judicature at Bombay, Nagpur Bench (“HC”), challenging an order dated November 04, 2019, passed by the Trial Court vide which, an application filed by the Appellant seeking permission of the court to produce certain documents and confront Nilofer (“Defendant No.1/Respondent No.1”) with such documents at the cross-examination stage had been rejected. The HC by way of such writ petition, was inter alia tasked with adjudicating upon whether a ‘party’ could be equated to a ‘witness’ under the relevant provisions of the CPC, and documents could be adduced at the cross-examination stage by both a witness and a party, as the case may be. The learned Single Judge of the HC, taking note of the contrarian views on this matter as expressed by the judgments of the HC in Vinayak M. Desai v. Ulhas N. Naik and Ors.[4] and Purushottam v. Gajanan[5], sought consideration of the issues raised by a Larger Bench.
In Purushottam, the HC had observed that a party to a suit, i.e. a plaintiff or a defendant, cannot be equated with a witness and cannot be confronted with a document at the stage of cross-examination. The same would be tantamount to casting a surprise upon the plaintiff/defendant. However, in Vinayak, it was opined, in view of multiple provisions of the Evidence Act, 1872, (“Evidence Act”) including Section 120 which states that parties to a civil suit as well as their wives or husbands shall be competent witnesses; that a party is equivalent to a witness in such context. The learned Division Bench, upon a perusal of the aforementioned judgments, inter alia held that (i) a party to a suit cannot be equated with a witness; and (ii) documents can be produced directly at the cross-examination stage, provided that the examination is of a witness who is not a party to the suit.
Hence, an appeal was sought before the Hon’ble Supreme Court, impugning the judgment passed by the learned Division Bench of the HC.
Contention of the Parties:
The counsel for the Appellant primarily contended that carving a distinction between a party and a witness for the purpose of adducing evidence at the cross examination stage is likely to be ineffective as it would “take away the ability to surprise or confront a witness in the stand” and by corollary amount to “forcing parties to disclose their arguments, defences and evidence entirely in their pleadings.”[6] It was further submitted that the expression ‘plaintiff’s witnesses’ provided in Order VII, Rule 14(4) does not exclude the plaintiff from such rule and instead applies to all witnesses introduced at the instance of the plaintiff, including the plaintiff herself.
On the other hand, the counsel for the Respondents inter alia contended that the concept of the ‘element of surprise’ is not countenanced by the CPC. In this regard, it was submitted that the CPC vide provisions such as Order VI, Rule 9 expressly negates the element of surprise by requiring that the contents of documents produced be material and stated in the pleading filed. Further, it was also contended that the expressions ‘plaintiff’s witnesses’ and ‘defendant’s witnesses’ are unambiguous and accordingly, their literal meaning i.e., one which does not include the plaintiff or the defendant as the case may be, must be attributable to them.
Findings of the Hon’ble Supreme Court:
Re: The distinction between a ‘party to a suit’ and a ‘witness’
The Hon’ble Supreme Court rejected the argument that a ‘party to a suit’ and a ‘witness to a suit’ cannot be equated. It categorically held in this regard that for the purposes of adducing evidence, whether documentary or oral, both a witness and party to a suit are on the same footing. In doing so, the court considered the wording of inter alia, (i) Section 120 of the Evidence Act, which states that “in all civil proceedings, the parties to the suit, and the husband and wife of any party to the suit, shall be competent witness”; as well as (ii) Order XVI, Rule 21 of the CPC, which clearly provides that “where any party is required to give evidence or to produce a document, the provisions as to witnesses shall apply to him…” It was held that the aforementioned provisions negate any distinction between a party and a witness to a suit, for the purpose of adducing evidence, and, that in fact “if the literal interpretation as posited by the respondent is accepted, the distinction created would lay waste to the law as framed – giving rise to a difference not envisaged by the Code…”[7]
Re: The production of documents to confront a party to a suit at the cross-examination stage
As regards whether documents may be adduced at the cross-examination stage to confront both a party and a witness in a suit, the court answered in the affirmative. It was held that the production of documents, as long as (i) the same is for the purpose of jogging the memory of the witness at the stand or for conducting an effective cross-examination; and (ii) is not completely ‘foreign’ to the pleadings made by the parties, is well within the contours of what is legally permissible. The court summarised the position of law, in this regard, as follows:
“31. 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)…”[8]
Conclusion
It is settled law that a party is not permitted to go beyond the contents of its pleadings – wherein all material facts must be put forth. The decision of the Supreme Court in Mohammed Abdul Wahid v. Nilofer & Anr., assumes significance as it curates a jurisprudence in civil proceedings, whereby parties may be allowed to adduce certain documents/evidence for the purposes of cross-examination, which have not been pleaded, to further an ‘element of surprise’. It is possible that such an element of surprise at the cross-examination stage may be against the notion of a fair trial.
It is also noteworthy that the Hon’ble court in its judgment, distinguished the intentional withholding of a document which is essential for the adjudication of the lis, from production of a document at the cross-examination stage for an effective examination; and opined that the latter could not be held to be fraud. However, the Court did not delve into when the non-production of documents may amount to the same. In fact, it observed that, “the non-production of documents on which the parties place reliance may hinder the progression of the suit, and in a given case, perhaps may amount to fraud, but we do not comment on those possibilities, if any.”[9] It would be interesting to see how future judgments deal with the practical impact of adducing evidence outside of pleadings, during the cross examination stage and the fair trial considerations therein.
For further information, please contact:
Vikash Kumar Jha, Partner, Cyril Amarchand Mangaldas
vikashkumar.jha@cyrilshroff.com
[1] 2023 SCC Online SC 1672
[2] 2023 SCC Online SC 1672, para 14
[3] W.P. (C) No.7717/2019
[4] 2017 SCC Online Bom 8515
[5] 2012 SCC Online Bom 1176
[6] 2023 SCC Online SC 1672, para 8(vii)
[7] 2023 SCC Online SC 1672, para 25
[8] 2023 SCC Online SC 1672, para 31.
[9] 2023 SCC Online SC 1672, para 20.
