Summary
The Supreme Court held that a party testifying in a civil suit stands on the same footing as another witness for the documentary exceptions governing cross-examination. Documents may be produced at that stage for effective confrontation or refreshing memory without advance production, subject to the limited purpose and their connection with the pleadings.
Issues
- Whether a party entering the witness box is excluded from the documentary exceptions available for cross-examination of witnesses.
- Whether documents not produced with the pleadings may be used to confront that party.
Provisions considered
- Order VII Rule 14(4); Order VIII Rule 1-A(4); Order XIII Rule 1(3), Code of Civil Procedure, 1908The exceptions for documents used in cross-examination or to refresh memory extend to parties testifying as witnesses. They permit production at cross-examination for that limited purpose rather than general evasion of documentary disclosure. (¶¶ 19, 20, 26, 30, 31, 32)
- Order XVI Rules 14 and 21; Order XVIII Rule 3-A, Code of Civil Procedure, 1908These provisions recognise a party’s capacity to testify and apply witness procedures. They provide no sound basis for separating a party in the witness box from other witnesses for the issue before the Court. (¶¶ 14, 21)
- Sections 120 and 137–139, Indian Evidence Act, 1872Parties are competent witnesses. The rules of examination do not support a distinction excluding them from effective cross-examination by the adverse party. (¶¶ 14, 15, 16, 17)
Held
- A plaintiff or defendant who enters the witness box performs the same evidentiary function as a witness called by that party. The CPC and Evidence Act do not sustain the High Court’s distinction for purposes of production of documents in cross-examination. (¶¶ 13, 14, 15, 16, 17, 22, 25, 26)
- Withholding a document on which the substantive case depends differs from producing a document solely for effective cross-examination. The latter is within the express exceptions and is not on that account fraudulent. (¶¶ 18, 19, 20)
- A document produced for confrontation or refreshing memory must not be completely foreign to the pleadings. The exception is confined to its limited purpose at cross-examination and does not dispense with ordinary production requirements for documents relied on to establish the case. (¶¶ 28, 29, 30, 31, 32)
Result
Appeal allowed. The Bombay High Court Division Bench judgment of 9 February 2021 was set aside. The original petition was restored for decision on merits under the law declared. Parties to bear their own costs; interlocutory applications disposed of.