Paragraph numbers below are the court’s original numbering, recovered from the source text.
20. The diff erentiation between the party to a suit and a witness, as is made clear by our earlier discussion, is not something that gels with the law. As has been hitherto observed, 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. As far as the non-production of documents amounting to fraud, it may be true 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. However, the intentional withholding of a document, in these two situations- is completely diff erent. One is the withholding of a document upon which the case depends, or is essential for the lis to be appropriately decided – and the other is solely for the purpose of eff ective cross-examination. The two cannot be held to be at the same pedestal, the latter most certainly not amounting to fraud.
21. A perusal of the CPC otherwise as well supports this view, as it does not, in any manner address a situation where a party to a suit is to enter the witness box, and what the procedure may be, to be followed for such an occurrence, setting this testimony apart from those rendered by other witnesses.
22. The argument that the literal interpretation of “the Plaintiff ’s witnesses” and “the Defendant’s witnesses” suggests a clear diff erence between the parties to the suit and the witness produced at their instance – has to be necessarily negated as a plaintiff or a defendant at their own behest may enter evidence in court- and so, to hold, as the judgement impugned before us does, that it is permissible as according to Order VIII Rule 1-A(3), to produce a document to confront or jog the memory of a witness, but the same would not be permissible as applied to a party to a suit, would create an artifi cial distinction, which otherwise does not serve any purpose of law. MOHAMMED ABDUL WAHID v. NILOFER & ANR.
23. We notice that the Madras High Court in Miss T.M. Mohana v. V. Kannan10 had in as far back as 1984, held that the production of documents for the purpose of cross-examinations can be availed only for a witness of a party and not the party themselves, is an untenable argument. Also, that the “Plaintiff ’s witnesses” would not only be witnesses for the plaintiff , but also the plaintiff himself.
24. This proposition was referred to and agreed upon by the Gujarat High Court in Amit M. Pathakji, Sr. Manager (Mech.) & Anr v. Bhavnaben Amitkumar Pathakji11 in the year 2007, which notably is after the Code of Civil Procedure (Amendment) Act, 2002. This fact acquires signifi cance as the Division Bench in the Impugned Judgment diff erentiates the judgment in T.M Mohana (supra) with the present-day Code as the provision it speaks of is not to be found in the Code.
25. 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 diff erence not envisaged by the Code, while also indirectly obliterating other well-recognized concepts of law such as that of an interested witness (which is a recognized concept in civil suits as well12) for one of the diff erences culled out, between a party to a suit and a witness- is on the degree of interest in the outcome of the case, stating that a party is obviously interested, while a witness is not.13
26. To conclude the issue at hand- 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, being precluded from eff ectively 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 diff erentiates between a party to a suit and a witness for the purposes of evidence is negated. 10 1984 SCC Online Mad 145 11 2007 SC OnLine Guj 78. 12 See Sadayappan v. State, (2019) 9 SCC 257 (2-Judge Bench) 13 Para 23 of the Impugned Judgment
27. In Purushottam (supra) the Learned Single Judge had observed that it was not open for the trial court to allow the production of documents to confront the party to the suit and it would be a diff erent course if the person being confronted was only a witness to the suit. While Vinayak Dessai (supra) essentially agrees on this point, the diff erence arises with the latter saying that a party and a witness can be equated for the purposes of the two being on the same pedestal while entering evidence. Both the above-stated judgments diff er with Upper India Couper Paper Mills Co. Ltd. (supra) which says that it is not obligatory to produce advanced copies of documents sought to be introduced for the limited purpose of cross-examination.
28. 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. We may refer to Ram Sarup Gupta v. Bishun Narain Inter College14, wherein it was observed as follows: “6. … It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. To have a fair trial it is imperative that the party should settle the essential material facts so that the other party may not be taken by surprise. The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hair-splitting technicalities. Sometimes, pleadings are expressed in words that may not expressly make out a case in accordance with a strict interpretation of the law. In such a case the court must ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead, the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings; 14 (1987) 2 SCC 555 (2-Judge Bench) MOHAMMED ABDUL WAHID v. NILOFER & ANR. instead, the court must fi nd out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of defi ciency in the pleadings, parties knew the case and they proceeded to trial on those issues by producing evidence in that event it would not be open to a party to raise the question of absence of pleadings in appeal….”
29. We may also refer to Udhav Singh v. Madhav Rao Scindia15, wherein a bench of two learned judges observed: “25…If the plea or ground of defence “raises issues of fact not arising out of the plaint”, such plea or ground is likely to take the plaintiff by surprise, and is therefore required to be pleaded. If the plea or ground of defence raises an issue arising out of what is alleged or admitted in the plaint, or is otherwise apparent from the plaint, itself, no question of prejudice or surprise to the plaintiff arises. Nothing in the rule compels the defendant to plead such a ground, not debars him from setting it up at a later stage of the case, particularly when it does not depend on evidence but raises a pure question of law turning on a construction of the plaint.”
30. A reading of the judgments above would imply that substance is what the courts need to look into, and therefore, in reference to the production of documents, in the considered view of this court, so long as the document is produced for the limited purpose of eff ective 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 fl y in the face of this established proposition.
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 fi led 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 15 (1977) 1 SCC 511 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 set-off 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.
32. In light of the above discussion, and the answer in the negative to the fi rst question before this court, meaning thereby that there is no diff erence 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.
33. The questions raised in the instant lis are answered in the above terms. The appeal is allowed.
34. In view of the discussion hereinabove, the judgment of the Division Bench in WP No. 7717 of 2019 titled as Mohammed Abdul Wahid v. Smt. Nilofer with WP No. 6931 of 2019 titled as Sau. Kantabai & Anr. v. Sudhir & Ors dated 9th February 2021 by the Bombay High Court, is set aside.
35. The original petition stands restored to the fi le of the High Court for it to be decided on merits in accordance with the law as hereinabove discussed.
36. Interlocutory Applications, if any, stand disposed of. Parties to bear respective costs. Headnotes prepared by: Appeal allowed. Nidhi Jain