Supreme Court clarifies rules on document production during cross-examination in civil suits: Mohammed Abdul Wahid vs. Nilofer & Anr. (2023) INSC 1075 (14 December 2023)

Date of the Judgment: 14 December 2023
Citation: (2023) INSC 1075
Judges: B.R. Gavai, J. and Sanjay Karol, J.

Can a party to a civil suit be treated differently from a witness when it comes to producing documents during cross-examination? The Supreme Court of India recently addressed this crucial question, clarifying whether a party can be confronted with documents during cross-examination without prior disclosure. This judgment settles a conflict between different interpretations of the Code of Civil Procedure, 1908 (CPC) regarding the production of documents during cross-examination in civil suits. The Supreme Court bench comprising Justices B.R. Gavai and Sanjay Karol delivered the judgment, with Justice Sanjay Karol authoring the opinion.

Case Background

The case originated from a conflict in opinions within the High Court of Judicature at Bombay regarding the interpretation of the CPC concerning the production of documents during cross-examination. Specifically, the issue arose from two conflicting decisions: Vinayak M Dessai v. Ulhas N. Naik and Ors. and Purushottam v. Gajanan. These cases presented differing views on whether a party to a suit could be treated the same as a witness when it comes to the production of documents during cross-examination.

In Purushottam v. Gajanan, the High Court had held that a party to a suit could not be confronted with documents during cross-examination if those documents had not been previously disclosed. This was based on the idea that such a practice would unfairly surprise the party. However, in Vinayak M Dessai v. Ulhas N. Naik and Ors., a different view was taken, suggesting that if a party is not a witness, Section 137 of the Evidence Act, 1872, may not apply to a party, and that could defeat the purpose of examination and cross-examination.

The matter was then referred to a larger bench to resolve this conflict, leading to the current appeal before the Supreme Court. The appellant, Mohammed Abdul Wahid, challenged the High Court’s decision, arguing that it contravened various provisions of the CPC and the Evidence Act. The respondent, Nilofer, supported the High Court’s view that a party should be treated differently from a witness in this context.

Timeline

Course of Proceedings

The matter was initially heard by a single judge of the High Court of Judicature at Bombay, who noted the conflicting views in Vinayak M Dessai v. Ulhas N. Naik and Ors. and Purushottam v. Gajanan. To resolve this conflict, the single judge framed three questions and referred them to a Division Bench of the High Court. The Division Bench, after considering the matter, answered the questions, leading to the present appeal before the Supreme Court. The Supreme Court then addressed the questions, setting aside the High Court’s ruling and clarifying the legal position.

Legal Framework

The Supreme Court considered several provisions of the Code of Civil Procedure, 1908 (CPC), and the Indian Evidence Act, 1872. Key provisions include:

• Order VII Rule 14 of the CPC: This rule mandates that a plaintiff must produce all documents they rely on when filing a suit. However, sub-rule (4) states, “Nothing in this rule shall apply to document produced for the cross -examination of the plaintiffs witnesses, or handed over to a witness merely to refresh his memory.”
• Order VIII Rule 1A of the CPC: Similarly, this rule requires a defendant to produce all documents they rely on with their written statement. Sub-rule (4) provides an exception: “Nothing in this rule shall apply to documents — (a) produced for the cross -examination of the plaintiff’s witnesses, or (b) handed over to a witness merely to refresh his memory.”
• Order XIII Rule 1 of the CPC: This rule mandates the production of original documents before the settlement of issues. Sub-rule (3) carves out an exception: “Nothing in sub -rule (1) shall apply to documents — (a) produced for the cross -examination of the witnesses of the other party; or (b) handed over to a witness merely to refresh his memory.”
• Section 120 of the Indian Evidence Act, 1872: This section states, “In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses.”
• Order XVI Rule 21 of the CPC: This rule states, “Where any party to a suit is required to give evidence or to produce a document, the provisions as to witnesses shall apply to him so far as they are applicable.”
• Order XVI Rule 14 of the CPC: This rule allows the court to summon any person, including a party to the suit, as a witness.
• Order XVIII Rule 3A of the CPC: This rule states that a party who wishes to appear as a witness must do so before any other witnesses on their behalf are examined.
• Sections 137, 138, 139, 154, and 155 of the Indian Evidence Act, 1872: These sections deal with the examination of witnesses, cross-examination, and impeaching the credit of a witness.

The Supreme Court emphasized that these provisions must be interpreted in a manner that ensures a fair trial, where all parties have an equal opportunity to present their case and challenge the evidence presented by the other side.

Arguments

The following arguments were presented by the parties:

Appellant’s Arguments

• The appellant argued that the High Court’s conclusion was against the provisions of the CPC, specifically Order VII Rule 14(4), Order VI Rule 21, and Order VIII Rule 1(A)(4)(a)(b). The appellant contended that these provisions carve out an exception for documents used during cross-examination, and this exception should apply to all witnesses, including parties to the suit.
• The appellant argued that the term “plaintiff’s witnesses” should not exclude the plaintiff themselves but should apply to all witnesses called by the plaintiff, including the plaintiff.
• The appellant submitted that the High Court erroneously stated that all documents, not just those relied on in the plaint, are prohibited from being used in cross-examination unless filed earlier.
• The appellant referred to Order VIII Rule 1, which is the general rule for producing documents, and the exception in sub-rule 3, which states that the rule of prior production does not apply to documents produced for cross-examination or to refresh a witness’s memory.
• The appellant argued that Order VI Rule 21 negates the High Court’s distinction between a party and a witness.
• The appellant contended that the Indian Evidence Act, 1872, does not differentiate between a party acting as a witness and a witness simpliciter, referring to Sections 120, 137, and 155-160.
• The appellant argued that the High Court’s interpretation would extinguish effective cross-examination by preventing the element of surprise and forcing parties to disclose all their arguments and evidence in the pleadings.

Respondent’s Arguments

• The respondent argued that Orders I to XX of the CPC define a party as a plaintiff or defendant, while a witness is someone who supports or proves a plea set out by the parties.
• The respondent contended that the phrase “insofar as applicable” in Order XVI Rule 21 regulates the conduct of a party when they testify as a witness, setting out a clear distinction between parties and witnesses.
• The respondent argued that Order XIII Rule 1(3) is clear and does not require interpretation, suggesting that it allows documents to be produced to test a witness’s veracity but does not include parties to the suit.
• The respondent argued that the element of surprise is absent for a party being cross-examined because various provisions mandate that all documents relied on by the suit or defense must be filed at the first instance.
• The respondent submitted that the expressions “plaintiff’s witness” and “defendant’s witness” are unambiguous and should be given their literal meaning.
• The respondent concluded that the High Court correctly applied the principles of interpretation to answer the questions framed by the referring court.

Submissions of the Parties

Issues Framed by the Supreme Court

The Supreme Court framed the following issues for consideration:

1. 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?
2. 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?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

Cases

• State of Bombay v. Kathi Kalu Oghad [AIR 1961 SC 1808]: The Constitution Bench defined what it means “to be a witness,” stating it involves imparting knowledge of relevant facts through oral or written statements.
• S.P. Chengivaraya Naidu v. Jagannath [(1994) 1 SCC 1]: This case was referred to by the High Court to substantiate the point that non-production of documents may amount to fraud.
• Ram Sarup Gupta v. Bishun Narain Inter College [(1987) 2 SCC 555]: This case emphasized that in the absence of pleading, evidence cannot be considered, and that parties should not travel beyond their pleadings.
• Udhav Singh v. Madhav Rao Scindia [(1977) 1 SCC 511]: This case discussed that a plea or ground of defense that raises issues of fact not arising out of the plaint is required to be pleaded.
• Miss T.M. Mohana v. V. Kannan [1984 SCC Online Mad 145]: The Madras High Court held that “Plaintiff’s witnesses” include the plaintiff themselves and that documents can be produced for cross-examination of a party.
• Amit M. Pathakji, Sr. Manager (Mech.) & Anr v. Bhavnaben Amitkumar Pathakji [2007 SC OnLine Guj 78]: The Gujarat High Court agreed with the Madras High Court’s view in T.M. Mohana, stating that the rule of document production for cross-examination applies to parties as well.
• Sadayappan v. State [(2019) 9 SCC 257]: This case was cited to highlight the concept of an interested witness, which is relevant in civil suits as well.

Statutes

• Code of Civil Procedure, 1908 (CPC): Specifically, Order VII Rule 14, Order VIII Rule 1A, Order XIII Rule 1, Order XVI Rule 21, Order XVI Rule 14, and Order XVIII Rule 3A were considered.
• Indian Evidence Act, 1872: Specifically, Sections 120, 137, 138, 139, 154, and 155 were considered.

Authorities Considered by the Court

Judgment

The Supreme Court held that there is no distinction between a party to a suit and a witness when it comes to the production of documents during cross-examination. The court set aside the judgment of the High Court, holding that documents can be produced for cross-examination of both a party to the suit and a witness.

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

The Supreme Court analyzed the authorities in light of the issues framed. The court used the definition of “witness” from State of Bombay v. Kathi Kalu Oghad [AIR 1961 SC 1808] to clarify that a party giving evidence is also a witness. The court distinguished the facts of S.P. Chengivaraya Naidu v. Jagannath [(1994) 1 SCC 1], stating that non-production of documents for the purpose of cross-examination cannot be equated with fraud. The court also emphasized the importance of substance over form, referring to Ram Sarup Gupta v. Bishun Narain Inter College [(1987) 2 SCC 555] and Udhav Singh v. Madhav Rao Scindia [(1977) 1 SCC 511], to state that the production of documents for cross-examination is permissible so long as it is not completely divorced from or foreign to the pleadings made. The court relied on the view of Miss T.M. Mohana v. V. Kannan [1984 SCC Online Mad 145] and Amit M. Pathakji, Sr. Manager (Mech.) & Anr v. Bhavnaben Amitkumar Pathakji [2007 SC OnLine Guj 78] to state that the term “plaintiff’s witnesses” includes the plaintiff themselves.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the need to ensure a fair trial and to avoid creating artificial distinctions that would hinder the process of cross-examination. The court emphasized that both parties and witnesses perform the same function when giving evidence and that the law should not create unnecessary barriers to effective cross-examination. The court also noted that the literal interpretation of the CPC provisions, as suggested by the respondent, would lead to an absurd outcome, and that the substance of the law should be considered.

Sentiment Analysis of Reasons Given by the Supreme Court

Ratio of Fact:Law

Logical Reasoning

The Court reasoned that if the legislature had intended to differentiate between a party to a suit as a witness and a witness simpliciter, it would have done so explicitly. The court also noted that the function performed by either a witness or a party to a suit when in the witness box is the same.

The Court also considered the argument that the literal interpretation of “Plaintiff’s witnesses” and “Defendant’s witnesses” suggests a clear difference between the parties to the suit and the witness produced at their instance. The Court rejected this argument, stating that a plaintiff or a defendant at their own behest may enter evidence in court, and therefore, the literal interpretation would create an artificial distinction, which otherwise does not serve any purpose of law.

The court emphasized that the freedom to produce documents for cross-examination or refreshing memory should be available to parties as well. Precluding parties from effectively questioning the other side with the aid of documents would compromise the proceedings.

The court also clarified that the production of documents for cross-examination is permissible as long as it is not completely divorced from or foreign to the pleadings made.

The Supreme Court stated:

“It is clear from the above discussion, that witnesses and parties to a suit, for the purposes of adducing evidence, either documentary or oral are on the same footing.”

“The phrase “so far as it is applicable” in Order XVI Rule 21 does not suggest a difference in the function performed.”

“…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.”

The Supreme Court overruled the High Court’s judgment, specifically setting aside 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.

Key Takeaways

• A party to a civil suit is to be treated the same as a witness when it comes to the production of documents during cross-examination.
• Documents can be produced during the cross-examination of a party to the suit without prior disclosure, as long as they are used for the limited purpose of cross-examination or to refresh memory.
• The provisions of the CPC and the Evidence Act do not create a distinction between a party acting as a witness and a witness simpliciter for the purpose of document production during cross-examination.
• This judgment ensures that all parties have an equal opportunity to present their case and challenge the evidence presented by the other side.
• The ruling promotes the truth-finding process in trials by allowing effective cross-examination.

Directions

The Supreme Court restored the original petition to the file of the High Court, directing it to be decided on merits in accordance with the law as discussed in the judgment.

Development of Law

The ratio decidendi of this case is that a party to a civil suit is to be treated the same as a witness when it comes to the production of documents during cross-examination. This judgment clarifies the legal position and settles the conflict between different interpretations of the Code of Civil Procedure, 1908 (CPC) regarding the production of documents during cross-examination in civil suits. This case changes the previous positions of law as held by the High Court of Judicature at Bombay in the cases of Purushottam v. Gajanan and Vinayak M Dessai v. Ulhas N. Naik and Ors.

Conclusion

The Supreme Court’s judgment in Mohammed Abdul Wahid vs. Nilofer & Anr. clarifies that a party to a civil suit is to be treated the same as a witness when it comes to producing documents during cross-examination. This ruling ensures a fair trial by allowing parties to effectively challenge evidence and promote the truth-finding process. The Court has overruled the judgment of the High Court of Judicature at Bombay and has settled the law on the issue.