Documents Can Be Produced During Cross-Examination In Civil Trial To Confront Party To Suit Or Witness : Supreme Court

In a notable judgment, the Supreme Court has held that a document can produced during cross-examination in a civil trial to confront a party to the suit or a witness. The Court also held that there is no distinction between a party to a suit and a witness in this regard.

A bench comprising Justices BR Gavai and Sanjay Karol set aside a judgment of the Bombay High Court which held that documents can be directly produced at the stage of cross-examination only to confront a witness, who is not a party to the suit. In other words, the Bombay High Court held that a plaintiff or a defendant, while deposing as a witness, cannot be confronted with a fresh document during cross-examination. Holding the High Court's view to be unsustainable, the Supreme Court stated that no distinction can be drawn between a party to a suit and a witness in this context.

The issue in the case revolved around Order VII, Rule 14(4), Order VIII, Rule 1A(4) and Order XIII, Rule 1(3) of the Code of Civil Procedure 1908.  The High Court, while answering a reference arising out of conflicting judgments, held : "Documents can be directly produced at the stage of cross- examination of a witness, (who is not a party to the suit), to confront the witness for refreshing his memory, under Order VII, Rule 14(4); Order VIII, Rule 1-A(4) and Order XIII, Rule 3 of Civil Procedure Code without seeking prior leave of the Court.". The High Court also held that a party to a suit (plaintiff/defendant) cannot be equated with a witness.

In the appeal against the High Court's judgment, the Supreme Court considered two issues :

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?

No distinction between a party to a suit and a witness

The judgment authored by Justice Karol held that the High Court's view was incorrect. Even a plaintiff or a defendant, while testifying their own causes, are subject to the same procedures regarding the witnesses and hence a water-tight differentiation is not warranted. Referring to various such provisions, the Suprme Court said, "witnesses and parties to a suit, for the purposes of adducing evidence, either documentary or oral are on the same footing."

"In our considered view, this distinction does not rest on firm ground. This is so because the function performed by either a witness or a party to a suit when in the witness box is the same," the Court explained.

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. 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, the Court stated [Paras 17, 20 of the judgment].

Documents can be produced in cross-examination to confront either the witness or a party to suit

The Court concluded the issue as follows in paragraph 26 :

"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."

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, the judgment clarified[para 31].

"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," the judgment stated[para 32]

Justice Karol reminded in the beginning of the judgment that the ultimate purpose of the trial is the discovery of truth.

Senior Advocate Huzefa Ahmadi appeared for the petitioner. Advocate Dr. R.S. Sundaram appeared for the respondent.

Case Title : Mohammed Abdul Wahid v. Nilofer and another

Citation : 2023 LiveLaw (SC) 1061

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