Wednesday, July 19, 2023

PRODUCTION OF DOCUMENTS DURING CROSS EXAMINATION:PERMISSIBLE?

 

 




Production of documents during cross examination:permissible?

 

The common law and procedure as regards civil cases in pre-trial stage revolves around summons and pleadings. After pleadings are complete, issues are framed and when witnesses are being cross examined, what will be the fate of the documents sought to be introduced during cross examination? That aspect is being looked at herein. The basic rule, of course is to file all documents that a party to the lis relies upon or seeks to rely upon while filing plaint or written statement as the case may be. However, whether there is any embargo to place additional documents on record during examination or cross examination of a witness?

The hon’ble Delhi High Court has dealt with the matter in a matter captioned as BHAG SINGH GAMBHIR AND ORS Vs RAMA ARORA and bearing no. CS(OS) 132/2017.

In the aforesaid judgment, the Delhi High Court has held that the Courts have successively permitted a party to the lis to place the documents on record during cross examination. The following judgments are relied upon by the court in that regard:

(i)          Levaku Pedda Reddamma & Ors. Vs. Gottumukkala Venkata Subbamma & Anr. (Supreme Court) Civil Appeal No.4096 of 2022, SLP (C) No.7452/2022.

(ii)         Jindal Stainless (Hisar) Ltd. Vs. Sourabh Jinal & Ors., 2022 SCC OnLine Del 1, decision dated 03.01.2022, Delhi High Court.

(iii)       Sugandhi (dead) by legal representatives and Others vs. P. Rajkumar, (2020) 10 SCC 706.

(iv)       Subhash Chander vs. Shri Bhagwan Yadav, 2009 SCC OnLine Del 3818, Delhi High Court.

(v)         Pandharinath L. Bhandari vs. Bharti Trimbak Bhandari and Ors., 2021 SCC OnLine Bom 447, AIR 2021 Bom 155.

 


In Sugandhi (Supra) the Supreme Court has held in para no.9 that:

“9. It is often said that procedure is the handmaid of justice Procedural and technical hurdles shall not be allowed to come in the way of the court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, courts must lean towards doing substantial justice rather than relying upon procedural and technical violation. We should not forget the fact that litigation is nothing but a journey towards truth which is the foundation of justice and the court is required to take appropriate steps to thrash out the underlying truth in every dispute. Therefore, the court should take a lenient view when an application is made for production of the documents under sub rule (3).”

 

The Delhi High Court in the case of Subhash Chander vs. Shri Bhagwan Yadav, 2009 SCC OnLine Del 3818, held as follows:

“8. Order 7 Rule 14(4), Order 8 Rule 1 (A) (4), as well as Order 13 Rule 1(3) provide that the provisions requiring parties to file documents along with their pleadings and/or before the settlement of issues do not apply to documents produced for the cross examination of the witnesses of the other party. To the same effect, Section 145 of the Evidence Act also permits documents to be put to the witnesses, though it does not provide whether such documents should be already on the court record or can be produced / shown for the first time. However, in view of the unambiguous provisions of the CPC, it cannot be held that the document cannot be produced/shown for the first time during cross examination. If the witness to whom the said document is put, identifies his handwriting / signature or any writing / signatures of any other person on the said document or otherwise admits the said documents, the same poses no problem, because then the document stands admitted into evidence. However, the question arises as to what is the course to be followed if the witness denies the said document. Is the document to be kept on the court file or to be returned to the party producing the same?

9. This question also in my view is also not difficult to answer. It cannot possibly be said that the document should be returned to the party. If the document is so returned it will not be possible for the court to at a subsequent stage consider as to what was the document put and what was denied by the witness. In a given case, it is possible that the answer of the witness on being confronted with the document may not be unambiguous. It may still be open to the court to consider whether on the basis of the said answer of the witness, the document stands admitted or proved or not and/or what is the effect to be given to the said answer. Thus, the document cannot be returned and has to be necessarily placed on the court file.

10. The next question which arises is that if the document is so placed on the court file, whether it becomes / is to be treated as the document of the party producing the same and is that party entitled to prove the said document notwithstanding having not filed the same earlier, as required by law, or the use of the said document is to be confined only to confront the witness to whom it was put and it cannot be permitted to be proved by that party in its own evidence.

11. The legislative intent behind order 7 Rule 14(4) and Order 8 Rule 1A (4) and Order 13 Rule 1(3) appears to be to permit an element of surprise, which is very important in the cross examination of witnesses. A litigant may well be of the opinion that if the document on the basis whereof he seeks to demolish the case of the adversary is filed on the court record along with pleadings or before framing of issues, with resultant knowledge to the adversary, the adversary may come prepared with his replies thereto. On the contrary, if permitted to show/produce the document owing to element of surprise, the adversary or witness, may blurt out the truth. Once it is held that a litigant is entitled to such right, in my view it would be too harsh to make the same subject to the condition that the litigant would thereafter be deprived of the right to prove the said documents himself. Thus, if the witness to whom the document is put in cross examination fails to admit the document, the party so putting the document, in its own evidence would be entitled to prove the same. However, the same should not be understood as laying down that such party for the said reason and to prove the said document would be entitled to lead evidence which otherwise it is not entitled to as per scheme of CPC and evidence law. For instance, if the document is shown by the defendant to the plaintiffs witness and the plaintiffs witness denies the same, the defendant can prove the document in his own evidence. Conversely, if the plaintiff puts the document to the defendants witness and the defendants witness denies the same, the plaintiff if entitled to lead rebuttal evidence would in his rebuttal evidence be entitled to prove the same. However, if the plaintiff has no right of rebuttal evidence in a particular case, the plaintiff would not be entitled to another chance to prove the document. In such a case, the plaintiff has to make a choice of either relying upon the surprise element in showing the document or to file the document along with its pleadings and/or before the settlement of issues and to prove the same. Similarly, if the defendant chooses to confront the document to the plaintiffs witness in rebuttal, merely because the witness denies the document would not entitle the defendant to a chance to prove the document subsequently.”

 

The Bombay High Court in Bharti Trimbak Bhandari, 2021 SCC OnLine Bom 447, has held as follows:

 

“6. Question arising for consideration; are

a. Whether scheme of Code of Civil Procedure, 1908 (CPC for short) interdicts, the parties to the suit from confronting the witness of adverse party with a document, not on the Courts record, but shown or produced to the witness for the first time in his cross-examination ?

b. The next question is: the party, which has otherwise failed to file documents at appropriate stage could be permitted to bring on record the document through evidence of the witness of adversary by putting or confronting him with such document?

7. The main object of the cross-examination is to bring out the falsity and to find out the truth and further to weaken qualify or destroy the case of Opponent and to establish the own case through Opponents witness. Thus objects are to impeach the accuracy, credibility and general value of the evidence given in-chief, to sift the facts already stated by the witness, to detect and expose discrepancies or to illicit suppressed act, which will support the case of cross-examining party. The exercise of this right is regarded and one of the most efficacious for recovery of truth. Provisions of Section 137 of the Indian Evidence Act, 1872 empowers and Section 146 to 150, regulates cross examination of witness. Confronting witness, with a document is permissible to test veracity of witness; under Section 146 of the Evidence Act. Though the range of cross-examination is unlimited, it must relate to relevant facts. Thus „relevancy of document, to which witness is confronted with, is a essential condition. (Emphasis supplied)

8. Thus, to be stated that the provisions of Order-7 Rule-14(4), Order-8 Rule-1 (A)(4) and Order-13 Rule-3(a) of the CPC are exceptions to the Rules, regulating the production of documents by the Plaintiffs and Defendants alongwith the plaint and written statement. To achieve the desired result. While witness of adverse party is examined, if the party to the suit is not permitted to confront the witness with a document, which has not been produced with the pleadings, adverse party cannot test the veracity or impeach the credit of the witness. Thus, the legislation in its wisdom carved out aforesaid exceptions. Thus, in view of explicit provisions of CPC, it cannot be held that the document cannot be produced or shown, for the first time to the witness during the cross-examination, though it was not produced with the pleadings. The first question is answered accordingly.”

 

                              CONCLUSION

The aforesaid judgments of hon’ble Supreme Court, Delhi High Court and Bombay High court has consistently maintained that there is no embargo in placing additional documents on record, even during the cross examination of witness to the plaintiff or defendant as the case may be, even if the documents are raised for the first time. The surprise element shall be the sine qua non of a trial and that may be a tool to elicit the truth and it is the bounden duty of the court to elicit truth so as to adjudicate the disputes fairly and effectually. The Courts are clothed with such power under section 151 of Code of Civil Procedure to secure the ends of justice and as regards the placing of documents as surprise, the same shall be covered under the trap of Order 13 of Code of Civil Procedure and section 145 of Indian Evidence Act as well. After all, a trial can neither be mechanical nor it could be allowed to be a mere ritualistic process. The prowess of a lawyer and probing mind of a judge should be allowed to be set in motion with a view to unravel the truth and it cannot be cast in a mud. The Order 13 of Code of Civil Procedure and Section 145 of Indian Evidence Act 1872, as also successive judgments of the Courts shall stand testimony to that.

                                              ---------

Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com

 

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