However, in the facts of the
present case, it cannot be said that there is no pleading to support the
document Ex.PW1/D1.
The petitioner/defendant has in the written
statement pleaded that the withdrawal application which was filed in the
court had been got signed from him mischievously and not in accordance
with the compromise arrived at between the parties. The counsel for the
petitioner/defendant contends that Ex.PW1/D1 is the document in proof of
the said settlement. The petitioner/defendant was in the written statement
not required to plead documents or evidence and on a reading of the written
statement of the petitioner/defendant, copy whereof was handed over
during the course of hearing, I find that the necessary plea in support of the
document does exist.
IN THE HIGH COURT OF DELHI AT NEW DELHI
CM(M) No.171/2009
Date of decision: 25th November, 2009
SUBASH CHANDER Vs SHRI BHAGWAN YADAV
CORAM :-
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
trials. The questions can be framed thus:-
(i)
What is the challenge/fate of the documents produced for the first
time during the cross examination of a witness and which are denied
by the witness? Whether the said documents are required to be
retained / kept on the court file or merely because the witness has
denied the document, the same has to be returned to the party which
has produced the same?
(ii)
If the said documents are to be kept on record/retained, what is the
status thereof?
(iii)
Whether a party producing the said document can prove the same at
the stage of his own evidence or for the reason of having not
produced it along with its plaint / written statement and having
chosen to use it only during cross examination, is then barred from
treating the document as own document and proving the same?
Since I am unable to find any judgment completely considering the aspects
and further since in my opinion these questions plague the courts on a daily basis,
it is deemed appropriate to answer the same.
2.
This petition under Article 227 of the Constitution of India is preferred by
the defendant in the suit before the Trial Court and against the order dated 20th
October, 2008 dismissing the application of the petitioner/defendant under Section
45 of the Indian Evidence Act.
3.
The respondent/plaintiff instituted the suit from which this petition arises
against the petitioner/defendant for recovery of money. It is inter alia the case of
the respondent/plaintiff that he is the owner of certain land which had been
acquired from the predecessor of the petitioner/defendant; that a notification for
acquisition of the said land was issued; that he applied for compensation for such
acquisition; however the petitioner/defendant filed objections against the release
of compensation to the respondent/plaintiff and which objections were
subsequently withdrawn by the petitioner/defendant; that owing to the objections
having been filed, the release of compensation to the respondent/plaintiff was
delayed. The respondent/plaintiff claims interest on the amount of compensation
for the period of delay, so caused by the petitioner/defendant.
4.
The petitioner/defendant contested the suit inter alia by controverting that
the land had been transferred by his predecessor to the respondent/plaintiff/his
predecessor; that the respondent/plaintiff had taken advantage of the illiteracy of
the father of the petitioner/defendant and cheated him out of the land.
The
petitioner/defendant admitted having filed objections to the release of
compensation to the respondent/plaintiff and also admitted having withdrawn the
said objections. It is, however, his plea that the objections were withdrawn owing
to compromise having been arrived at between the parties; however, the
respondent/plaintiff again mischievously got the withdrawal application signed
from him without disclosing that it had been falsely written therein that the
petitioner/defendant had no documents of ownership of the land.
5.
The
petitioner/defendant
during
the
cross
examination
of
the
respondent/plaintiff put to him a hand written document purporting to be a draft of
the application for withdrawal of objections.
It is inter alia the case of the
petitioner/defendant that the said document is in the handwriting of the
respondent/plaintiff and the withdrawal of objections was to be in terms of the said
document.
The respondent/plaintiff however when confronted with the said
document denied the same to be in his handwriting and also denied the same to be
the draft of the application for withdrawal to be filed and also denied any
knowledge thereof. Ex.PW1/D1 was put on the said document and the same
retained on file.
6.
It is thereafter that the petitioner/defendant filed the application under
Section 45 of the Indian Evidence Act (for comparison of handwriting on the said
document with admitted handwriting of the respondent/plaintiff) and which has
been dismissed by the order impugned in this petition. The trial court has held:-
(a).
That the petitioner/defendant has not mentioned the said document
in his written statement; that the said document was not in
accordance with the application for withdrawal of objections
ultimately filed and copy whereof had been proved on the suit file.
(b).
That the counsel for the respondent/plaintiff, at the time when the
said document was confronted to the respondent/plaintiff had also
raised objection as to the production, admissibility and mode of
proof of the said document and the document was taken on record
subject to the objections of the respondent/plaintiff. The Trial Court
thus held that no case for comparing the handwriting on the said
document with the admitted handwriting of the respondent/plaintiff
arises.
7.
This court while issuing notice of this petition held that the Trial Court
before considering the application under Section 45 of the Evidence Act, should
have first decided whether the document could be taken on record or not. Notice
of the petition was issued to this limited extent.
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 plaintiff’s witness and the plaintiff’s witness denies
the same, the defendant can prove the document in his own evidence. Conversely,
if the plaintiff puts the document to the defendant’s witness and the defendant’s
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 plaintiff’s witness in rebuttal, merely because the witness denies
the document would not entitle the defendant to a chance to prove the document
subsequently.
12.
I may however put a line of caution over here. It is often found that a party
which has otherwise failed to file documents at the appropriate stage, attempts to
smuggle in the documents in the evidence of the witness of the adversary by
putting the documents to the witness whether relevant to that witness or not. The
court should be cautious in this regard. Only those documents with which the
witness is concerned and/or expected to know or answer ought to be permitted to
be put to the witness in the cross examination. If other documents with which the
witness is not concerned are confronted only in an attempt to have the same filed
and to thereafter prove the same, the court would be justified in clarifying that the
document is taken on record only for the purpose of cross examination and the
producing party would not be entitled to otherwise prove the same, having not
filed it at the appropriate stage.
13.
During the course of the hearing, the counsel for the petitioner relied on
T.M. Mohana Vs. V. Kannan AIR 1984 Madras 14 laying down that prior leave
of the Court is not necessary for producing documents in cross examination.
14. The counsel for the respondent has relied on:-
(i) Poonam Chawla Vs. Niranjan Kumar 2009 (109) DRJ 534 which is
closest to the case in hand. In that case, the defence of the defendant had
been struck off.
The defendant in the limited opportunity of cross
examination available to him put to the plaintiff certain documents which
were denied by the plaintiff. The defendant thereafter applied to the Court
for comparison of the handwriting on the said document with the admitted
handwriting of the plaintiff. The argument of the counsel for the plaintiff
was that allowing the said application would tantamount to permitting the
defendant to prove the documents in his defence and which right he had
lost. It was held that what a party is prohibited in law from doing directly, it
cannot achieve the same by an indirect method. However, this Court while
holding so also observed that the handwriting could be compared on
documents which form part of the record and accepted the contention of the
counsel for the plaintiff that the documents put in cross examination and
denied by the plaintiff did not form part of the record. Though, the said
observation of another Single Judge of this Court is contrary to the
conclusion reached by me above, but I have not deemed it necessary to
refer to the matter to a larger bench because the Court in that case was
swayed by the defence of the defendants having been struck off.
(ii)
Bondar Singh Vs. Nihal Singh AIR 2003 SC 1905. This judgment was
cited by the counsel for the respondent/plaintiff in support of the
proposition that the document Ex.PW1/D1 in the present case was not
pleaded by the petitioner/defendant in his evidence and for this reason also
no evidence with respect thereto can be lead. However, in the facts of the
present case, it cannot be said that there is no pleading to support the
document Ex.PW1/D1.
The petitioner/defendant has in the written
statement pleaded that the withdrawal application which was filed in the
court had been got signed from him mischievously and not in accordance
with the compromise arrived at between the parties. The counsel for the
petitioner/defendant contends that Ex.PW1/D1 is the document in proof of
the said settlement. The petitioner/defendant was in the written statement
not required to plead documents or evidence and on a reading of the written
statement of the petitioner/defendant, copy whereof was handed over
during the course of hearing, I find that the necessary plea in support of the
document does exist.
(iii)
Haren Krishnakumar Mehta Vs. Kamla Pribhdas Nebhanani AIR 2001
Bombay 187. This is again on the aspect of rejection of evidence beyond
CM(M) No.171/2009
Page 8 of 9
pleadings. However, in the present case, I find foundation for reception of
Ex.PW1/D1 into evidence having been laid in the written statement of the
petitioner/defendant.
(iv)
S.M. James Vs. Dr. Abdul Khair AIR 1961 Patna 242 where on an
interpretation of Order 13 Rule 7 it was held that documents admitted in
evidence are only those documents that can legally be on record and other
documents cannot be on record of the suit even if found amongst the papers
on record. In the present case, evidence is still underway and the stage for
sifting documents has not reached. In view of conclusion reached above,
the document Ex.PW1/D1 is legally on record till this stage.
15.
I answer the questions framed above accordingly. This petition succeeds
and is allowed. The petitioner/defendant was entitled to put the document in cross
examination of the respondent/plaintiff; notwithstanding the denial by the
respondent/plaintiff, the petitioner/defendant is entitled to otherwise prove the said
document. Since the scope of this petition vide order dated 4th March, 2009 was
restricted to the above, the Trial Court to now decide the application of the
petitioner/defendant under Section 45 of the Evidence Act in accordance with the
legal position enumerated above.
The parties are left to bear their own costs.
RAJIV SAHAI ENDLAW
(JUDGE)
25th November, 2009
(corrected & released on 15th December, 2009)
gsr
CM(M) No.171/2009
Page 9 of 9
No comments:
Post a Comment