Therefore, on careful reading of the said provisions, would make
it abundantly clear that the documents other than the documents as
contemplated under Sub Rule (1), the said production can be allowed
for cross examination of the witnesses of the other party. On plain
reading of the said provision, it is abundantly clear that such
production of documents which is at later stage of the proceeding and
not prior to the framing of the issues, can be produced in the cross
examination of the witnesses of other party but the said Rule does not
contemplate that such document can be produced for the cross
examination of the party. As rightly contended by the counsel
appearing for the petitioner, this Court in writ petition No. 869 of 1997,
relying upon the judgment of the Jammu and Kashmir High Court in
the case of Union of India (supra) has taken a view that there is
distinction in the term witness and a party to the suit. The party to the
suit cannot be equated with the witness and cannot be confronted with
a document by casting surprise upon him, particularly when the
documents were not filed by the plaintiff alongwith the list of
documents on which he is going to rely upon.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5519 OF 2011
Purushottam Shankar Ghodgaonkar, Vs Gajanan s/o Shankar Ghodgaonkar,
CORAM : S.S. SHINDE, J.
Citation;2012(6)MH L J 648(Bombay)
THE JUDGMENT : 13.08.2012
JUGMENT :-
1. This petition takes exception of the order dated 7.7.2011,
passed by the learned Civil Judge, Junior Division, Chopda, thereby
allowing application Exh.154 filed under Order XIII Rule 3(1)(a) of
C.P.C., in R.C.S. No.167 of 2000.
2. Rule. Rule made returnable forthwith. By consent, heard finally.
3. The background facts, leading to file this petition, as disclosed in
the petition, are as under:-
The respondent No.1 herein has filed a suit for partition against
the petitioner and other respondents herein. The petitioner appeared in
the said suit and while he was under cross examination, the
respondent No.1 sought to produce documents contending that it were
reserved for cross examination of the petitioner. The petitioner had
objected to produce the documents for the first in cross, however, the
said application was rejected on 25.10.1996. The petitioner had
challenged the said order in this Court by filing writ petition No. 869 of
1997 and the said writ petition came to be allowed by this Court
holding that no document can be reserved for cross examination of a
party.
The respondent No.1, by way of Exh.94 on 13.11.1998, tried to
introduce very same documents contending that it were received late.
Without hearing the petitioner, the trial Court allowed the production on
the same day. The petitioner had challenged the said order by filing
C.R.A. No. 6 of 1999, which was disposed of with liberty to file writ
petition. The petitioner had accordingly filed writ petition No. 1325 of
2003. This Court had allowed the said writ petition and quashed and
set aside the impugned order and remanded the matter for fresh
decision. The trial Court on 22.3.2005 had rejected the application
filed by respondent No.1.
The respondent No.1 filed writ petition No. 5632 of 2005 in this
Court challenging the said order. The said writ petition was allowed on
17.6.2009. The petitioner had filed Review Petition No. 171 of 2009
on 10.7.2009, for review of the order dated 17.6.2009, on the ground
that the respondent No.1 had suppressed from this Court the order
passed in writ petition No. 869 of 1997. This Hon’ble court had
allowed the said review petition and the order dated 17.6.2009 was
recalled and liberty was granted to respondent No.1 to file fresh
application.
Accordingly, the respondent No.1 on 28.3.2011 filed fresh
application Exh.154 seeking production of same documents once
again. The learned trial court had allowed the said application filed
under Order XIII Rule 3(1)(a). Hence, this petition.
4. Learned counsel appearing for the petitioner submits that
considering the order passed by this court in writ petition No. 869 of
1997, the order impugned in this petition, could not have been passed
by the Trial Court. It is submitted that this court while deciding the writ
petition No.869 of 1997, relying upon the judgment of the Jammu
Kashmir High Court in the case of Union of India and Anr Vs. B.D.
Sharma, [AIR 1989 NOC 183], held that the parties to the suit cannot
be equated with the witness and cannot be confronted with a
document by casting surprise upon him. It is submitted that the said
writ petition was between the same parties, however, a liberty was
granted to the plaintiff to apply for permission to produce documents
alongwith the list on record of the case as documents of the plaintiff
and if that application is allowed, then the plaintiff may confront the
defendant with those documents. Learned counsel also invited my
attention to the judgment of this Court in Review Application No. 171 of
2009 in writ petition No. 5632 of 2005 and submitted that this court
reviewed and modified the order passed in writ petition No. 5632 of
2005 holding that the judgment and order in writ petition No. 869 of
1997 has attained finality and therefore, it was not open for the trail
court to allow the application of the original plaintiff for contradicting
the defendant No.1’s version about acquiring the property from his
own income. Learned counsel submitted that the production of
documents, as allowed by the trial court, to confront the defendant
himself, could not have been allowed in view of the judgment of this
court in writ petition No. 869 of 1997 and also in review application No.
171 of 2009. Learned counsel invited my attention to the pleadings in
the petition, annexures thereto and submitted that the writ petition may
be allowed.
5. On the other hand, the learned counsel appearing for the
respondent submitted that the contention of the petitioner that the
respondent No.1 deliberately reserved the production of the said
documents belatedly is totally false. The learned counsel invited my
attention to the provisions of Rule 3(1) (a) of Order XIII of C.P.C.
It is further submitted that the petitioner is the first witness of his
side and his deposition has been so recorded by the court. Both the
parties depose as their respective first witness in civil Suits. It is
submitted that when the party to the suit has deposed as the first
witness, practically no difference remains between the party to the suit
and witness. In fact, the party to a suit is the most prominent and the
first witness in such case, as he is deposing the facts, which are
corroborated by other witnesses.
It is further submitted that the documents, which are produced in
the cross examination of the petitioner, are the public documents,
certified by the competent authorities and therefore, they can be
submitted in the court even at the time of final arguments and there is
no need to prove the custody of those documents, as they have been
obtained from the related Government authorities by paying stipulated
fees or under the Right to Information Act. It is submitted though the
respondent could produce them at late due to genuine reasons, the
said reasons have been duly accepted by the learned trial court by
allowing their submissions at the costs of Rs.10,000/-, as directed by
this Court.
It is further submitted that the provisions of hand over the
documents to the witness for refreshing his memory has continued
despite the amendments in the CPC in 1999. It is submitted that the
purpose was not to catch the defendant at surprise, but it was to bring
truth before the Court. The Court’s aim is also to find the Truth.
It is further submitted that beyond all the procedural details, the
principles of natural justice prevail. If the use of this document is not
allowed in the cross examination of the defendant, the Court itself will
deny natural justice as well as its main function to find the truth.
Therefore, learned counsel appearing for the respondent No.1
submitted that this petition may be dismissed.
6. I have given due consideration to the rival submissions
advanced by the counsel for the respective parties. It appears that the
trial court has relied upon the amended provisions of Order XIII Rule 1,
Sub Rule (3)(a) of C.P.C. and production of the document is allowed.
The trial court has observed that such production is sought for by the
plaintiff for contradicting defendant No.1’s version about acquiring the
properties from his own income. The said provision of Order XIII Rule
1, Sub Rule (3)(a) of C.P.C. reads thus:-
“XIII 3(1) (a) – produced for the cross-examination of the
witnesses of the other party.”
Therefore, on careful reading of the said provisions, would make
it abundantly clear that the documents other than the documents as
contemplated under Sub Rule (1), the said production can be allowed
for cross examination of the witnesses of the other party. On plain
reading of the said provision, it is abundantly clear that such
production of documents which is at later stage of the proceeding and
not prior to the framing of the issues, can be produced in the cross
examination of the witnesses of other party but the said Rule does not
contemplate that such document can be produced for the cross
examination of the party. As rightly contended by the counsel
appearing for the petitioner, this Court in writ petition No. 869 of 1997,
relying upon the judgment of the Jammu and Kashmir High Court in
the case of Union of India (supra) has taken a view that there is
distinction in the term witness and a party to the suit. The party to the
suit cannot be equated with the witness and cannot be confronted with
a document by casting surprise upon him, particularly when the
documents were not filed by the plaintiff alongwith the list of
documents on which he is going to rely upon.
7. Therefore, in view of the earlier order passed by this Court,
wherein the plaintiff and defendant were party, the trial court could not
have taken a different view. The order in writ petition No. 869 of 1997
has attained the finality, which is binding upon the parties. That apart,
the view taken by this court in the said writ petition, is confirmed in
review application No. 171 of 2009 in writ petition No. 5632 of 2005 by
this Court. While deciding the review application, this Court observed
that the judgment and order passed in writ petition No. 869 of 1997
has attained finality and the said writ petition was between the same
parties, who are party to the subsequent writ petition and also to the
review and therefore, the said order is binding upon the parties.
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 cross examination. In view of the
above observations, writ petition deserves to be allowed.
9. In the result, writ petition is allowed in terms of prayer clause
“B”. The order dated 7.7.2011, passed by the learned Civil Judge,
Junior division, Chopda, below Exh.154 in R.C.S. No.167 of 2000 is
quashed and set aside. Rule made absolute accordingly.
10. It is made clear that the disposal of this writ petition is not an
expression holding that it is not open for the plaintiff to ask for
production of documents to confront the witness of the defendant i.e.
the petitioner herein.
*****
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