2023 LiveLaw (SC) 1061

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION
B.R. GAVAI; J., SANJAY KAROL; J.
December 14, 2023
CIVIL APPEAL NO. 8146 OF 2023 (Arising out of Special Leave Petition (Civil)No.14445 of 2021)
MOHAMMED ABDUL WAHID versus NILOFER & ANR.
Code of Civil Procedure, 1908 - there is no difference between a party to a suit as a
witness and a witness simpliciter - 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)
Code of Civil Procedure, 1908; Order VII Rule 14(4), Order VIII Rule 1A(4)(a) and
Order XIII Rule 1(3) - Documents can be produced during cross-examination in civil
trial to confront party to suit or witness. 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. (Para 31)
Code of Civil Procedure, 1908 - Order VII Rule 14(4), Order VIII Rule 1A(4)(a) and
Order XIII Rule 1(3), 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)
(Arising out of impugned final judgment and order dated 09-02-2021 in WP No. 7717/2019 passed by the
High Court of Judicature at Bombay at Nagpur)
For Petitioner(s) Mr. Satyajit A. Desai, Adv. Mr. Masood Shareef, Adv. Mr. Siddharth Gautam, Adv. Mr.
Abhinav K. Mutyalwar, Adv. Mr. Gajanan N. Tirthkar, Adv. Mr. Vijay Raj Singh Chouhan, Adv. Ms. Anagha
S. Desai, AOR
For Respondent(s) Mr. P. N. Gupta, AOR Mr. Somanatha Padhan, AOR Mr. Akash Kakade, Adv. Mr. Ashok
Anand, Adv. Mr. Rakesh Kumar Singh, Adv.
JUDGMENT
SANJAY KAROL, J.
Leave Granted.
2. In adjudicating this appeal, the thought to be borne foremost in mind is that every
trial is a search of truth. This purpose is succinctly captured in the following terms in
American Jurisprudence, Second Edition, 2007:
“The purpose of trial is to determine the validity of the allegations. The objective is to secure a fair
and impartial administration of justice between the parties to the litigation and not the achievement
of a hearing wholly free from errors. Once a civil action has been instituted and issue is joined
upon the pleadings, there must be a trial on the issue before a judgment may be rendered.
Trial is not a contest between lawyers but a presentation of facts to which the law may be applied
to resolve the issues between the parties and to determine their rights. It is also not a sport; it is
an inquiry into the truth, in which the general public has an interest.”
It would be useful to also refer to the objectives in framing rules for conducting civil
proceedings. The Halsbury’s Law of England state the following overriding objectives of
the Civil Procedure Rules:
(i) ensuring that the parties are on equal footing;
1
(ii) saving expense;
(iii) dealing with the case in ways which are proportionate:
ito the amount of money involved;
ii
to the importance of the case;
iii
to the complexity of the issues; and
iv
to the financial position of each party;
(iv) ensuring that it is dealt with expeditiously and fairly; and
(v) allotting to it an appropriate share of the court’s resources, while taking into account
the need to allot resources to other cases; and
(vi) enforcing compliance with rules, practice directions and orders.
The parties are required to help the court to further the overriding objective.
Undoubtedly, perhaps unquestionably, the same objectives guide the interpretation of the
Code of Civil Procedure 1908.
3. In this search for truth, while placing these rules or in the case of our country, the
Code, in highest regard, on the role of a judge, we may benefit from Lord Denning’s
observations in Jones v. National Coal Board1 where his Lordship remarked:
“The Judge’s part in all this is to hearken to the evidence, only himself asking questions of
witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to
see that the advocates behave themselves seemly and keep to the rules laid down by law, to
exclude irrelevancies and discourage reputation, to make sure by wise intervention that he
follows, the points that the advocates are making and asses their oral, and at the end to make up
his mind where the truth lies. If he goes beyond this he drops the mental of a judge and assumes
the robe of an advocate, and the change does not become his well”.
THE CONFLICT
4. This appeal takes exception to a judgment delivered by the High Court of Judicature
at Bombay2 (Nagpur Bench) by which the Division Bench had answered three questions
framed by a Learned Single Judge of that Court in view of the two allegedly conflicting
decisions, viz. Vinayak M Dessai v. Ulhas N. Naik and Ors. 3 and Purushottam v.
Gajanan4.
5. In Purushottam (supra) the Learned Single Judge had observed:
“8. Therefore, in my opinion, as long as, the judgment and order in Writ Petition No. 869 of 1997
is in force and admittedly not challenged by either of the parties, it was not open for the trial
Court to allow production of documents to confront the original defendant i.e. the
petitioner herein. It is different matter if the production is allowed for confronting the
witnesses of the party. This Court is not inclined to express any opinion about the said aspects
and it is left open for the parties to take appropriate proceeding in that respect. However, as
concluded by this Court in Writ Petition No. 869 of 1997, the defendant i.e. petitioner herein cannot
be confronted by the plaintiff by producing documents during the course of crossexamination…”
(Emphasis Supplied)
5.1 In Vinayak M Dessai (supra) the Learned Single Judge observed :
“17. Evidence in terms of section 3 of the Evidence Act, 1872 means and includes all statements
which the Court permits or requires to be made before it by witnesses in relation to matters of fact

1 1957 2 QB 55
2 WP No. 7717/2019 & 6931/2019; (Hereinafter, the Impugned Judgment)
3 2017 SCCOnLine Bom 8515
4 2012 SCCOnLine Bom 1176

2
under inquiry; such statements being called oral evidence and all documents including electronic
records produced for the inspection of the Courts being the documentary evidence. Section 118
of the said Act provides for the persons who may testify and reads that all persons must be
competent to testify unless the Court considers that they are prevented from understanding the
questions put to them, or from giving rational answers to those questions, by tender years,
extreme old age, disease, whether of body or mind, or any other cause of the same kind. Section
120 provides that parties to the civil suit and their wives or husbands or husband or wife of person
under criminal trial shall be competent witnesses while section 137 deals with the examination in
chief of a witness by the party who calls him for his examination, the cross- examination being by
the adverse party and reexamination being subsequent to cross-examination by the party who
called him. However, a discussion of these relevant provisions of the Evidence Act no doubt
substantiate the contention of Shri Pangam, learned Advocate for the Respondents, that if
a party is not a witness, it would lead to a disastrous interpretation and even to the extent
that section 137 of the Evidence Act may not apply to a party and which could defeat the
purpose of examination and cross-examination. Nonetheless, the discussion on the point
is purely academic looking to the law on the point namely Order VII, Rule 14, Order VIII,
Rule 1 and Order XIII, Rule 1 of the Civil Procedure Code. Besides, if an interpretation as
canvassed by Shri Pangam is accepted, the provisions of Order VII, Order VIII and Order
XIII would be rendered nugatory and as observed in Laxmikant Sinai Lotlekar (supra). The
learned trial Court therefore was in jurisdictional error to disallow the objections raised by
the petitioner-plaintiff contrary to the mandate of Order VIII, Rule 1 and Order XIII, Rule
1(3)(a) of the Civil Procedure Code. The Respondents had to follow the mandate as
contained in Order VIII, Rule 1 of the Civil Procedure Code and could not seek to produce
such documents directly during the cross-examination of the plaintiff which it had to
otherwise rely upon in a list of documents as required by law. The learned trial Court
therefore committed a jurisdictional error and therefore the impugned Order calls for an
interference.”
(Emphasis Supplied)
5.2 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 vis a vis another judgment of a co-ordinate
bench in Upper India Couper Paper Mills Co. Ltd. v. M/s Mangaldas and Sons5, the
Learned Single Judge observed as under:
“9. A perusal of the above quoted portion of the judgment in the case of Vinayak M. Dessai (supra)
shows that observation was made to the effect that if a party was not to be a witness it would lead
to a disastrous interpretation to the extent that even Section 137 of the Evidence Act, 1872, may
not apply to a party, which could defeat the purpose of examination and crossexamination. This
observation is directly contrary to the observations made in the above quoted portion of the
judgment of a learned single Judge of this Court in the case Purshottam s/o Shankar
Ghodegaonkar (supra), wherein it has been categorically laid down that the party to a suit cannot
be equated with a witness and cannot be confronted with documents by casting surprise upon
him, particularly when the documents were not filed along with the list of documents. Thus, there
is an obvious cleavage of views in the aforesaid two judgments of learned single Judges of this
Court on the said issue i.e. whether a “party” is also a “witness”.
…
17. As regards the other issue that arises for consideration, there appears to be direct
conflict in the observations made in the above-quoted portions of the judgments of the
learned single Judges in the cases of Purshottam s/o Shankar Ghodegaonkar (supra) and

5 2004 SCC Online Bom 716

3
Vinayak M. Dessai (supra), on the one hand and those made by the learned single Judge
in the case of Upper India Couper Paper Mills Co. Ltd. (supra). While in the judgments in
the cases of Purshottam s/o Shankar Ghodegaonkar (supra) and Vinayak M. Dessai
(supra), the learned single judges of this Court have laid down that documents cannot be
produced directly at the stage of cross-examination for confronting a witness so as to
spring a surprise upon him / her, in the case of Upper India Couper Paper Mills Co. Ltd.
(supra), the learned single Judge has held that the words 'nothing in this rule' used in
Order VIII Rule 1-A of the CPC demonstrate that a document can be produced directly at
the stage of crossexamination and that there was no necessity of furnishing such
document in advance to the witness, to ensure potency and effectiveness of cross-
examination.
18. Having perused the above-quoted provision of Order VII Rule 14, Order VIII Rule 1-A(4)
and Order XIII Rule 1(3) of the CPC, in my opinion, the use of the words nothing in this rule / sub-
rule', indicates that documents can certainly be produced directly at the stage of cross-
examination of a party or a witness so as to confront him/her and that this would be necessary
for effective cross-examination of the party or witness. But, the observations made by learned
single Judges in the cases of Purshottam s/o Shankar Ghodegaonkar (supra) and Vinayak M.
Dessai (supra), appear to be holding a contrary view and, therefore, there appears to be conflict
of opinions with reference to the said issue also."
(Emphasis Supplied)
5.3 Thence, the judge framed three questions and referred the same to be answered. The
questions and their respective conclusions arrived at by the learned Division Bench,
subject matter of the present appeal are extracted as under:-
“40. We, therefore answer the questions under reference as under:—
1. Whether a party to a suit i.e. plaintiff/or A party to a suit (plaintiff/defendant) cannot be
defendant is also a witness and the equated with a witness. The provisions of
provisions of Order VII, Rule 14, Order VIII, Order VII, Rule 14(4), Order VIII, Rule 1-A(4)
Rule 1-A(4)(a) and Order XIII, Rule 1(3)(a) which includes Rule 1-A(4)(a) and Order XIII,
of the Civil Procedure Code need to be Rule 1(3) which includes Rule 1(3)(a) of Civil
interpreted and applied by equating “party” Procedure Code are not applicable to a party,
with a “witness” who enters the witness box to tender evidence
in his own cause.
The provisions are applicable to a witness
alone.
2. Whether documents can be directly Documents can be directly produced at the
produced at the stage of cross-examination stage of crossexamination of a witness, (who
of a party and/or a witness to confront is not a party to the suit), to confront the
him/her without seeking any prior leave of witness for refreshing his memory, under
the Court under Order VII, Rule 14(4), Order VII, Rule 14(4); Order VIII, Rule 1-A(4)
Order VIII, Rules 1(A)(4)(a) and Order XIII, and Order XIII, Rule 3 of Civil Procedure Code
Rule 1(3)(a) of the Civil Procedure Code? without seeking prior leave of the Court.

4
3. Whether the observations made in the Since we have held that a party cannot be
judgment in the cases of Purushottam s/o equated with a witness in the matter of
Shankar Ghodgaonkar (supra) and applying the provisions of VII, Rule 14(4);
Vinayak M. Dessai (supra), to the effect Order VIII, Rule 1-A(4) and Order XIII, Rule 3
that permitting production of documents of Civil Procedure Code, the observations
directly at the stage of cross-examination made in Purushottam s/o Shankar
of a witness and/or a party to a suit would Ghodgaonkar (supra) and Vinayak M. Dessai
amount to springing a surprise and hence, (supra), are correct and would not lead to
it is impermissible, are correct in the light of whittling down the effect of crossexamination
the plain reading of the aforesaid of a witness.
provisions and if accepted it would lead to Even if the witness was a party to the suit, what
whittling down the effectiveness of has been held in Purushottam s/o Shankar
crossexamination of a witness and/or a Ghodgaonkar (supra) and Vinayak M. Dessai
party? (supra) would equally hold good.
SNAPSHOT OF THE HIGH COURT’S REASONING
6. The High Court delivered a detailed judgment running into more than sixty pages.
To reach the above-stated conclusion, the reasoning adopted by the Court was:-
6.1. For Question 1- Differences between a party to a suit and a witness have been
identified, to hold that the Civil Procedure Code 6 uses the expressions ‘party’ and
‘witnesses’ "in contradistinction to each other." Further, it was observed that the role of a
witness is separate and distinct to a party to a suit. It was observed that merely because
Order XVI Rule 21 states that the Rules relating to witnesses would also apply to parties
summoned does not equate the two. Referring to Section 137 of the Indian Evidence Act,
1872, it is observed that the phrase 'by the party who calls him' clearly indicates that under
this Section the person called is other than the party to the case. It is thereafter held that
a plain reading of the statute certifies that a party cannot be equated to a witness as their
characters are different.
6.2. For Question 2 – Specific use of the phrase 'defendant's witness' and 'plaintiff's
witness' means persons other than those party to the suit, and therefore, no specific leave
would be required from the Court to confront such person with a document during cross-
examination as this would result in the element of surprise being extinguished.
Considering the legislative intent of Order VII Rule 14 Sub-Rule (4), Order VIII Rule 1-
A(4)(a) and Order XIII Rule 1(3) of C.P.C. as well as others, it was observed that the
legislature has created an exception towards the documents being produced for cross-
examination of witnesses of the other party to allow confrontation of witnesses by catching
such person "unawares" in order to "bring out the truth on record". This distinction is
"conscious, deliberate and intentional", more so evident from the fact that this exception
appears thrice in the Code.
6.3. For Question 3 – In both Vinayak M Dessai and Purushottam (supra) a situation
where a document was sought to be produced at the time of cross-examination of a party,
who was a witness in his own case, was considered and not during the cross-examination
of a witness either called or summoned by the parties. This is why the production of
documents at this stage of cross-examination was held to be impermissible as that would
amount to a surprise which is impermissible under the provisions of the Code. Therefore,
both decisions lay down the correct view in law.

6 Hereinafter, C.P.C
5
7. 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?
SUBMISSIONS OF THE PARTIES
8. Mr. Huzefa Ahmadi, learned senior counsel appearing for the petitioner made the
following submissions:-
(i) The conclusion reached by the High Court is in contravention of various provisions of
the CPC such as Order VII Rule 14 (4), Order VI Rule 21, Order VIII Rule 1(A) (4) (a)
(b), etc. per illustration it is submitted that sub-Rule of Rule 14 states that its provisions
shall not apply to crossexamination of plaintiff's witnesses (documents produced therefor)
or those produced to refresh a witnesses memory. The legislature has therefore carved
out a deliberate exception.
(ii) The expression "plaintiff's witnesses" has not been used to exclude the plaintiff from
this rule and is instead intended to apply to all witnesses introduced at the instance of the
petitioner which may include himself.
(iii) The judgment impugned herein, it is submitted erroneously states that in teeth of
sub-rule (1) to (3), all documents as opposed to only those relied on in the plaint, shall be
prohibited from being used in the cross-examination unless filed earlier.
(iv) Further, reference is made to Order VIII Rule 1 which is the general rule of
production of documents and the exception carved there under in sub rule 3 which states
that the rule of prior production shall not apply to documents produced for the above two
instances.
(v) Order VI Rule 21 negates the reasoning of the High Court under which it has
adopted a distinction between a party and a witness.
(vi) Such a distinction also falls foul of substantive law i.e., Indian Evidence Act, 1872
which makes no distinction between a party taking on the role of a witness and a witness
simpliciter. Reference is made to Sections 120, 137 and 155160.
(vii) The consequence of the principle laid down by the High Court would be to
extinguish the possibility of effective cross-examination as it takes away the ability to
surprise or confront a witness in the stand and it instead amounts to forcing parties to
disclose their arguments, defenses and evidence entirely in the pleadings which may, in
turn, go against the fundamental rule of pleadings which is to stipulate only material facts
therein.
In furtherance of the above submissions, reference is made to judgments passed by the
High Courts of Madras, Gujarat, Kerala, Delhi and Bombay.

6
9. Learned counsel Dr. R.S. Sundaram, appearing for Respondent No.1 made the
following submissions: -
(i) Orders I to XX of the CPC have defined a party in specific terms as plaintiff and
defendant. A witness, in distinction, is for supporting and/or proving a particular plea set
out by the parties.
(ii) The phrase "insofar as applicable" as it appears in Order XVI Rule 21 regulates the
conduct of a party when he testifies as a witness. This phrase when construed in the light
cast by other provisions of the Code sets out a clear distinction between the parties and
a witness. Reference is made to Order VII Rule 14 (4), Order 8 Rule 1(A), (4) (a) and
Order XIII Rule 1 (3).
(iii) It is submitted that Order XIII Rule 1(3) is clear and poses no ambiguity and does
not require interpretation as argued by the appellant. The clause suggests that the
document can be produced and put to a witness to test its veracity and the words can in
no way be suggested to include the parties to the suit.
(iv) The element of surprise as against a party being crossexamined, is absent under
the Code. Various provisions mandate that any documents on which the suit relies or the
defense depends be filed at the first instance. Reference is made to Order VI Rule 9 which
requires that contents of all documents produced be material and be stated in the
pleadings, explicitly thereby negating the elements of surprise.
(v) The expressions “plaintiff’s witness and defendant’s witness” are unambiguous and
therefore the literal meaning, as is apparent, must be given to them.
(vi) Having considered the various provisions mentioned above, the Division Bench of
the High Court has correctly applied the principles of interpretation to answer the three
questions framed by the referring court.
THE OPINION OF THE COURT
10. A party to the suit is one on whose behalf or against whom a proceeding in a court
has been filed. A witness is a person, either on behalf of the Plaintiff or the defendant, who
appears before a Court to substantiate a statement or claim made by either side. Neither
the phrase ‘party to the suit’ nor ‘witness’ is defined under the CPC or any other statute
on the books. However on this issue, a Constitution Bench of this Court in State of
Bombay v. Kathi Kalu Oghad7 held as under-
“…“To be a witness” means imparting knowledge in respect of relevant facts, by means of oral
statements or statements in writing, by a person who has personal knowledge of the facts to be
communicated to a court or to a person holding an enquiry or investigation. A person is said “to
be a witness” to a certain state of facts which has to be determined by a court or authority
authorised to come to a decision, by testifying to what he has seen, or something he has heard
which is capable of being heard and is not hit by the rule excluding hearsay, or giving his opinion,
as an expert, in respect of matters in controversy…”
A ‘witness' as defined by P. Ramanatha Aiyar's Advanced Law Lexicon is as under:-
"One who sees, knows, or vouches for something (a witness to the accident). (1) in person, (2)
by oral or written deposition, or (3) by affidavit (the prosecution called its next witness)”. (Black,
7th Edn., 1999)

7AIR 1961 SC 1808

*Corpus Juris Secundum: A Contemporary Statement of American Law as Derived from Reported Cases and
Legislation. West, 1994.
7
"The term 'witness'*, in its strict legal sense, means one who gives evidence in a cause before a
Court; and in its general sense includes all persons from whose lips testimony is extracted to be
used in any judicial proceeding, and so includes deponents and affiants as well as persons
delivering oral testimony before a Court or jury.”
11. The High Court in its considered view stated that a party cannot be equated to a
witness. It is recorded in the impugned judgment that various provisions of the CPC lend
credence to the difference between a party to the suit and a witness in a suit.
12. In advancing its arguments before this court, the Respondents submitted that the
phraseology of the Code, employing "the Plaintiff's witnesses" and "the Defendant's
witnesses" suggests a clear difference between the parties to the suit and the witness
produced at their instance - and would submit that the literal rule of interpretation, in the
absence of any ambiguity, would be what is required to be followed.
13. This understanding, in our view, implies that the law places a party to a suit and a
witness to a suit in watertight compartments and that a plaintiff/defendant, even when
testifying to their own cause are not witnesses despite being in the witness box and being
subject to the same practices and procedures as any other witness before the court on
their behest.
14. This differentiation appears to be questionable. Reference may be made to Section
120 of the Indian Evidence Act, 1872 which states that parties to a civil suit shall be
competent witnesses. It reads:-
“120. Parties to civil suit, and their wives or husbands. Husband or wife of person under criminal
trial. - In all civil proceedings the parties to the suit, and the husband or wife of any party to the
suit, shall be competent witnesses. In criminal proceedings against any person, the husband or
wife of such person, respectively, shall be a competent witness.”
The word used is witnesses - which implies that a witness otherwise produced as also the
defendant or the plaintiff themselves, will stand on the same footing when entering
evidence for the consideration of the court. The Code itself speaks to the effect that when
a party to a suit is to testify in court. Regard may be had to Order XVI Rule 21 which reads
as under:-
“21. Rules as to witnesses to apply to parties summoned.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.
Further, Order XVI Rule 14, as extracted hereunder is taken note of.
“14. Court may of its own accord summon as witnesses strangers to suit.—Subject to the
provisions of this Code as to attendance and appearance and to any law for the time being in
force, where the Court at any time thinks it necessary [to examine any person, including a
party to the suit] and not called as a witness by a party to the suit, the Court may, of its own
motion, cause such person to be summoned as a witness to give evidence, or to produce any
document in his possession, on a day to be appointed, and may examine him as a witness or
require him to produce such document.”
(Emphasis Supplied)
In respect of the above provision, it is essential to notice that prior to the amendment to
the Code in the year 1976, this Section was applicable to “any person other than a party

8
to suit”8 the express exclusion has been amended, to turn it into an explicit inclusion within
the term ‘witness’.
We may also refer to Order XVIII Rule 3A which states that when a party to a suit wishes
to appear as a witness, he is to do so prior to other witnesses. The section reads:-
3-A. Party to appear before other witnesses.—Where a party himself wishes to appear as a
witness, he shall so appear before any other witness on his behalf has been examined, unless
the Court, for reasons to be recorded, permits him to appear as his own witness at a later stage.
The relevant principles as culled out by B.P Sinha, CJI (majority opinion) in the
above referenced decision of the Constitution Bench may also be instructive in gaining an
understanding of the ambit of a witness. In Para 16, it was observed: -
“
….
(3) “To be a witness” is not equivalent to “furnishing evidence” in its widest significance; that
is to say, as including not merely making of oral or written statements but also production of
documents or giving materials which may be relevant at a trial to determine the guilt or innocence
of the accused.
(4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings
or showing parts of the body by way of identification are not included in the expression “to be a
witness”.
(5) “To be a witness” means imparting knowledge in respect of relevant facts by an oral
statement or a statement in writing, made or given in court or otherwise.
(6) “To be a witness” in its ordinary grammatical sense means giving oral testimony in court.
Case law has gone beyond this strict literal interpretation of the expression which may now bear
a wider meaning, namely, bearing testimony in court or out of court by a person accused of an
offence, orally or in writing.”
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 discussion
as aforesaid, emphasises the lack of differentiation between a party to suit acting as a
witness and a witness simpliciter in the suit proceedings. The presence of these provisions
also begs the question that if the legislature had the intent to differentiate between a party
to a suit as a witness, and a witness simpliciter, it would have done so, explicitly.
On this we may only highlight what the High Court had to observe:
"Merely because Order XVI Rule 21 provides that the Rules as to witnesses are to apply to parties
summoned, that would not mean that the party is being equated with a witness. The Rule only
applies for regulating the conduct of a party when he enters the witness box in his own cause,
otherwise in absence of such a provision, there would be a void and the conduct of a party
entering the witness box in his own cause, would go unregulated. This is further substantiated
from the use of the expression "in so far as they are applicable" occurring in Rule 21 of Order
XVI."
A simple brushing off by saying that “merely because” one provision mentions them to be
performing similar functions, they are not to be equated, cannot be allowed. No proper
reason is forthcoming from a perusal of the extracted portion or otherwise for the
differentiation which is between a witness in the witness box and the conduct of a party
appearing as a witness in the witness box. In our considered view, this distinction does
not rest on firm ground. This is so because the function performed by either a witness or

8 Code Of Civil Procedure (Amendment) Act, 1976

9
a party to a suit when in the witness box is the same. The phrase “so far as it is applicable"
in Order XVI Rule 21 does not suggest a difference in the function performed.
15. We may next consider the reliance in the impugned judgment, on certain provisions
of the Indian Evidence Act- particularly 137-138,139, 154 and 155. For ready reference,
the provisions are extracted as under:
Section 137
Examination-in-chief. –– The examination of witness by the party who calls him shall be
called his examination-in-chief. Cross-examination. –– The examination of a witness by
the adverse party shall be called his cross-examination. Re-examination. ––The
examination of a witness, subsequent to the cross-examination by the party who called
him, shall be called his re-examination.
Section 138
Order of examinations. –– Witnesses shall be first examinedin-chief, then (if the adverse
party so desires) crossexamined, then (if the party calling him so desires) reexamined.
The examination and cross-examination must relate to relevant facts, but the cross-
examination need not be confined to the facts to which the witness testified on his
examination-in-chief.
Direction of re-examination. –– The re-examination shall be directed to the explanation of
matters referred to in crossexamination; and, if new matter is, by permission of the Court,
introduced in re-examination, the adverse party may further cross-examine upon that
matter.
Section 139
Cross-examination of person called to produce a document. –– A person summoned to
produce a document does not become a witness by the mere fact that he produces it, and
cannot be cross-examined unless and until he is called as a witness.
Section 154
Question by party to his own witness. ––
1 [(1)] The Court may, in its discretion, permit the person who calls a witness to put
any questions to him which might be put in cross-examination by the adverse party.
2 [(2) Nothing in this section shall disentitle the person so permitted under sub-section
(1), to rely on any part of the evidence of such witness.]
Section 155
Impeaching credit of witness.––The credit of a witness may be impeached in the following
ways by the adverse party, or, with the consent of the Court, by the party who calls him:–
– (1) By the evidence of persons who testify that they, from their knowledge of the witness,
believe him to be unworthy of credit;
(2) By proof that the witness has been bribed, or has 1 [accepted] the offer of a bribe,
or has received any other corrupt inducement to give his evidence;
(3) By proof of former statements inconsistent with any part of his evidence which is
liable to be contradicted;
*****
Explanation. –– A witness declaring another witness to be unworthy of credit may not,
upon his examination-in-chief, give reasons for his belief, but he may be asked his reasons
10
in cross-examination, and the answers which he gives cannot be contradicted, though, if
they are false, he may afterwards be charged with giving false evidence.
16. The thrust of the reliance was that this Act by the use of the phrase ‘by the parties
who calls him' in the extracted provision, recognizes the difference between a party to a
suit and a witness called on to testify by a party. This distinction again, on the face of it,
appears misconceived. It is not doubted that such a phrase or other similar phrases have
been employed in these provisions, however, if the holding of the High Court is given an
imprimatur, it would cause an apparent conflict between provisions of the very same Act
i.e., the sections reproduced immediately hereinabove vis a vis Section 120, which, as
hitherto reproduced states that, a party to a suit shall be, amongst others, a competent
witness. It may also be observed that nowhere in the Evidence Act has the party been
precluded from presenting himself as a witness, and therefore this differentiation based
only on the meaning as it appears, cannot be countenanced. A perusal of Sections
137,138 and 139, in our considered view, does not favour the differences as pointed out
in the impugned judgement. Examination in chief, cross-examination and re-examination
are all facets of a trial which can be availed by a party or the adversary, for both the party
to a suit as a witness and also for other witnesses called by the party. Therefore, this
negates the interpretation that “the party who calls him” suggests a difference between
the party as also the witness called by such party for the purposes of entering evidence
before the court.
17. Having arrived at the conclusion as above, that the provisions of the Code as also
the Evidence Act do not differentiate between a party to the suit acting as a witness and a
witness otherwise called by such a party to testify, we may now consider the next question
presented by this lis.
18. While considering the legislative intent of Order VII Rule 14(4), Order VIII Rule 1-
A(4)(a) and Order XIII Rule 1(3), the High Court observed that the production of
documents relied on and/or "in the possession and power of the parties" as being
obligatory and noted that a failure to do so, may in some cases be tantamount to fraud.
Reference was made to S.P. Chengivaraya Naidu v. Jagannath 9 to substantiate the
same. It was observed that permitting a party to hold a document intentionally, for any
purpose whatsoever would nullify the requirement of a level playing field in the litigation,
but also undercut the said provisions because the language is clear- mandating for the
parties to produce documents, and whereas, the exception- i.e., Order VIII Rule 1-A (4)
and Order XIII Rule 1(3) applies only to witnesses and not to parties. Thus concluding that
the legislative intent is clear and unambiguous, as evidenced by the same difference being
present three times.
19. On this, it would be appropriate to extract the relevant provisions, for ready
reference.
Order VII [14. Production of document on which plaintiff sues or relies.—
(1) Where a plaintiff sues upon a document or relies upon document in his possession
or power in support of his claim, he shall enter such documents in a list, and shall produce
it in Court when the plaint is presented by him and shall, at the same time deliver the
document and a copy thereof, to be filed with the plaint.
(2) Where any such document is not in the possession or power of the plaintiff, he shall,
wherever possible, state in whose possession or power it is.

9 (1994) 1 SCC 1 (2-Judge Bench)

11
[(3) A document which ought to be produced in Court by the plaintiff when the plaint is
presented, or to be entered in the list to be added or annexed to the plaint but is not
produced or entered accordingly, shall not, without the leave of the Court, be received in
evidence on his behalf at the hearing of the suit.]
(4) 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
1-A. Duty of defendant to produce documents upon which relief is claimed or relied
upon by him.—(1) Where the defendant bases his defence upon a document or relies
upon any document in his possession or power, in support of his defence or claim for set-
off or counter-claim, he shall enter such document in a list, and shall produce it in Court
when the written statement is presented by him and shall, at the same time, deliver the
document and a copy thereof, to be filed with the written statement.
(2) Where any such document is not in the possession or power of the defendant, he shall,
wherever possible, state in whose possession or power it is.
[(3) A document which ought to be produced in Court by the defendant under this rule,
but, is not so produced shall not, without the leave of the Court, be received in evidence
on his behalf at the hearing of the suit.]
(4) 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
1. Original documents to be produced at or before the settlement of issues.—(1)
The parties or their pleader shall produce on or before the settlement of issues, all the
documentary evidence in original where the copies thereof have been filed along with
plaint or written statement. (2) The Court shall receive the documents so produced:
Provided that they are accompanied by an accurate list thereof prepared in such form as
the High Court directs. (3) 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.
20. The differentiation 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 different. 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 effective 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

12
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 difference 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 artificial
distinction, which otherwise does not serve any purpose of law.
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 significance as the Division Bench in the Impugned Judgment
differentiates 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 difference 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 differences 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
effectively 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 differentiates between a party to a suit and a witness for the
purposes of evidence is negated.
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 different course if the person being confronted was only a witness
to the suit. While Vinayak Dessai (supra) essentially agrees on this point, the difference
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 differ with Upper India Couper Paper Mills Co. Ltd. (supra) which says that

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

13
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; instead, the court must find 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 deficiency 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 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.
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

14 (1987) 2 SCC 555 (2-Judge Bench)

15 (1977) 1 SCC 511
14
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.
32. 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.
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 file 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.

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