In the case of Kotulpur Farmers Service Co-operative Society Ltd. v. Sayera Bibi, 2019 SCC OnLine Cal 2286, the Calcutta High Court has also held that when a person was called only to produce a document, Section 139 of the Evidence Act squarely applied and that such a person, also a defendant in the said case, could not be treated as a witness for the purpose of cross examination and that the trial Court had rightly rejected the prayer for the cross examination of the said witness.
In the High Court of Bombay at Goa
(Before Manish Pitale, J.)
Eknath Prabhakar Morajkar Vs Bhanudas Prabhar Morajkar
Writ Petition No. 319 of 2021
Decided on October 27, 2021,
Citation: 2021 SCC OnLine Bom 3613
The Order of the Court was delivered by
Manish Pitale, J.:— By this Writ Petition, the original plaintiffs are before this Court challenging an order passed by the Court of Civil Judge, Senior Division, Mapusa, whereby an objection raised on behalf of the petitioners regarding the questions put in cross examination to the witness of the plaintiff for producing photographs and supporting certificate/affidavit under Section 65-B of the Indian Evidence Act, has been rejected and cross examination has been permitted regarding the matter beyond the scope of such certificate. The petitioners invoked Section 139 of the Evidence Act to contend that since the said witness was summoned to produce the documents i.e. the photographs and supporting certificate under Section 65-B of the Evidence Act, he could not have been cross examined beyond formal identification of the photographs and signature on the certificate.
2. On the other hand, it is case of the respondents that Section 138 of the Evidence Act applies and that the cross examination could not be confined to the facts to which the witness testified in his examination in chief.
3. The petitioners have filed a Civil Suit against the respondents for declaration that Will dated 15.11.2018 is null and void and also for grant of permanent injunction restraining the respondents from alienating the properties that were subject matter of the said Will Deed. On the question of temporary injunction, the matter travelled up to this Court and by order dated 16.6.2021 passed in Appeal from Order no. 1/2020, this Court directed the suit to be disposed of within a period of six months, which period expires in December, 2021. Hence, the learned counsel for the parties submitted that there was urgency in the matter and consequently the Writ Petition was taken up for disposal at the admission stage.
4. The petitioner no. 1 i.e. the original plaintiff appeared as a witness in support of prayers made in the suit. During the process of recording of his evidence, the petitioner produced several photographs clicked by his son from his mobile phone camera. The photographs were referred to as X-5 (Colly). The petitioner produced the said photographs along with certificate under Section 65-B of the Evidence Act in the form of an affidavit sworn by his son who had taken the photographs. The respondents objected to the production of the said photographs on the ground that the certificate under Section 65-B of the Evidence Act, produced in the form of affidavit, could not be taken on record because the said certificate/affidavit was not signed by the petitioner himself.
5. It appears that in this backdrop, the petitioner called his son to depose in support of the said certificate/affidavit marked as Exh. 82, so that the photographs could be taken on record and the objection raised on behalf of the respondents could be answered.
6. On 13.8.2021, the son of the petitioner appeared before the Court below and he tendered the aforesaid affidavit at Exh.82, identifying his signature on the same. On this basis, the Court took on record the photographs relying on the said affidavit/certificate, thereby marking the photographs as C-93(colly). At this stage, the learned counsel representing the respondents started cross examination of the son of the petitioner as PW2. When the counsel started asking questions to the son of the petitioner beyond the facts pertaining to the clicking of the photographs and issuance of the certificate in the form of affidavit under Section 65-B of the Evidence Act, marked as Exh. 82, the learned counsel appearing for the petitioners raised an objection to the effect that the said witness ought not be cross examined beyond the certificate and photographs. In response, the counsel for the respondents claimed there could be no limit for cross examination.
7. The Court below passed the impugned order on the aforesaid objection raised on behalf of the petitioner and held as follows:—
“Order : Since, the witness who is in the box is the son of the plaintiff no. 1, the ld. Adv. for the Defendants are entitled to cross examine the witness within the scope of their defence taken. There cannot be any limit imposed on the cross examination, merely because the witness has come only to identify and produce the photographs along with the certificate at Exh. 82. The witness is at liberty to answer the questions put to him for cross examination. Hence the objection raised stands overruled.”
8. Upon the objection being overruled, the counsel for the respondents continued to ask questions beyond the said photographs and certificate at Exh. 82, to some of which the son of the petitioner responded by saying that he had come to answer the questions only for identification of the photographs and he would answer other questions only if summoned by the respondents.
9. Aggrieved by aforesaid order rejecting the objections raised on behalf of the petitioners, the present Writ Petition came to be filed in which notice was issued for final disposal. The respondents appeared though counsel and the contentions of the rival parties were considered.
10. Mr. J. Karn, learned counsel appearing for the petitioners submitted that the Court below erred in rejecting the objection, for the reason that the son of the petitioner had been called only to produce the photographs and the aforesaid certificate in form of affidavit executed under Section 65-B of the Evidence Act. It was submitted that the said certificate at Exh. 82 was issued under Section 65-B(4) of the Evidence Act and that Section 139 of the Evidence Act squarely applied to the son of the petitioner, which provides that when a person is summoned to produce a document he does not become a witness by the mere fact that he produces it, and he cannot be cross examined unless and until he is called as a witness. It was submitted that in the present case, the son of the petitioner had not filed any affidavit in evidence as contemplated under Order 18 Rule 4 of the CPC. The affidavit at Exh. 82 was nothing but a certificate as required under Section 65-B(4) of the Evidence Act and that in the examination in chief recorded before the Court below, it was merely stated that the photographs were taken by the son of the petitioner and that the signature on Exh.82 was indeed his signature. On this basis, it was submitted that Section 138 of the Evidence Act did not apply to the said certificate/affidavit at Exh. 82 and that therefore, the son of the petitioner, marked for convenience as PW2, could not be treated as a witness to face cross examination as contemplated under Section 138 of the Evidence Act. On this basis, it was submitted that the impugned order deserved to be set aside and recording of the evidence upon overruling of the said objection ought to be ignored and expunged from the record of the Court below.
11. On the other hand, Mr. A.D. Bhobe, learned counsel appearing for the respondent nos. 1 to 4 and 7 to 10 submitted that Section 138 of the Evidence Act squarely applied to the facts of the present case. It was submitted that once the affidavit of the son of the petitioner at Exh. 82 was part of the record of the Court below and he was produced as PW2 on behalf of the petitioner, Section 138 of the Evidence Act came into operation and that the cross examination of the said witness could not be restricted or confined to the facts to which the said witness had testified. It was submitted that Section 139 of the Evidence Act did not apply to the facts of the present case, because it would apply to an individual who is summoned by the Court for producing documents. On the nature of the cross examination permitted under Section 138 of the Evidence Act, the learned counsel for the respondent nos. 1 to 4, 7 to 10 relied on the judgment of Hon'ble Supreme Court in case of Bipin Shantilal Panchal v. State of Gujarat, (2001) 3 SCC 1, Judgment and order dated 13.1.2020 passed by this Court in the case of Sanjay s/o Shankar Bhalkar v. The State of Maharashtra (Criminal Writ Petition No. 1764 of 2019) and the Judgment of the Delhi High Court in the case of R.K. Chandolia v. CBI, (2012) 3 DLT 471.
12. Heard learned counsel for the rival parties and perused the material on record.
13. The short question that arises for consideration in the present case is, as to whether the petitioner was justified in objecting to the cross examination of his son who produced photographs clicked from his mobile phone and also placed on record the aforesaid certificate under Section 65-B(4) of the Evidence Act in the form of an affidavit before the Court below.
14. Before adverting to the facts of the present case, it would be appropriate to refer to the relevant provisions of the Evidence Act, which read as follows:—
“Section 137:— Examination-in-chief- The examination of a 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 cased 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 of Evidence Act “Order of examinations”
Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.
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 cross-examination; 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.”
15. A perusal of the above quoted provisions would show that the manner of recording the evidence of a witness is specified alongwith the order in which such examination has to be undertaken. Section 138 of the Evidence Act states that cross examination need not be confined to the facts to which the witness testified in his examination in chief, as long as the such cross examination relates to relevant facts. Section 139 of the Evidence Act clearly states that when a person is summoned to produce a document, he does not become a witness merely because he produces it and he cannot be cross examined, unless and until he is called as a witness.
16. In the present case, it would be necessary to ascertain whether the son of the petitioner was produced as a witness and therefore, he could be cross examined. The material on record shows that the petitioner examined himself as witness for the plaintiffs and during the course of recording of his evidence, he produced certain photographs with a certificate under Section 65-B(4) of the Evidence Act, in the form of an affidavit signed and sworn by his son, who had actually clicked the photographs from his mobile phone. During the course of recording of the evidence of the petitioner, as a witness for the plaintiff, the respondents (original defendants) raised an objection that the aforesaid certificate marked as Exh. 82 did not deserve to be taken on record for the reason that it was not signed by the petitioner who was the witness.
17. It is in this backdrop that the son of the petitioner was brought before the Court in the context of the said affidavit/certificate at Exh. 82, already placed on record along with photographs before the Court below. The examination in chief of the son of the petitioner shows that he tendered the aforesaid affidavit/certificate under Section 65-B(4) of the Evidence Act marked as Exh. 82 and he identified his signature on the said certificate/affidavit. Consequently, the photographs produced along with the said certificate which were earlier referred to as X-5(Colly) were taken on record by the Court below and marked as Exh. C-93 (Colly). The examination of the petitioner came to an end at this stage.
18. Thereupon, the counsel appearing for the respondents started cross examination of the son of the petitioner and started asking him questions beyond the manner in which the photographs were clicked or the said certificate/affidavit marked as Exh. 82, was issued. The counsel appearing for the petitioner (original Plaintiffs) raised an objection, claiming that the son of the petitioner appearing as PW2 should not be cross examined beyond the certificate at Exh. 82 and the photographs already marked as Ex. C-93 (colly). As noted above, by the impugned order, the said objection was overruled by the Court below.
19. This Court is of the opinion that merely because the son of the petitioner was shown as PW2 for the plaintiff, he could not be treated as having been called as a witness. The record clearly shows that the son of the petitioner appeared before the Court to identify his signature on the certificate issued under Section 65-B(4) of the Evidence Act marked as Exh. 82, in the context of the said photographs. It was on the basis of the identification of the signature on the certificate that the photographs stood exhibited as C-93 Colly. The son of the petitioner was summoned on behalf of the petitioner to produce the documents i.e. certificate at Exh. 82 and photographs placed on record. Merely because he was referred to as PW2 before the Court below, would not in itself mean that he was called as a witness. It is crucial that in the present case, there is no affidavit in evidence of the son of the petitioner as required under Order 18 Rule 4 of the CPC. Merely because the certificate at Exh. 82 issued under Section 65-B(4) of the Evidence Act by the son of the petitioner was in the form of affidavit, it cannot be said that the son of the petitioner had appeared as a witness before the Court below as contemplated under Sections 137 and 138 of the Evidence Act. Therefore, applying Section 139 of the Evidence Act, it becomes clear that the son of the petitioner, who was summoned to produce the documents did not become witness by the mere fact that he produced such documents and consequently he could not have been cross examined.
20. The approach adopted by the Court below in the impugned order is found to be erroneous. A perusal of the same shows that the Court below proceeded on the basis that since PW2 happened to be the son of the Plaintiff, the respondents were entitled to cross examine him within the scope of their defence. The Court below failed to appreciate that the son of the petitioner was summoned only in the context of the documents i.e. the photographs and the certificate in the form of affidavit sworn by him, marked as Exh.82. There was no affidavit in evidence of the son of the petitioner under Order 18 Rule 4 of the CPC. In this context, the learned counsel for the petitioners was justified in contending that if the person summoned in the context of the photographs and the certificate would have been an expert or a person not related at all to the petitioner, the respondents would have no scope to raise the said contentions. Thus, merely because the person who clicked the photographs from the mobile phone and issued the certificate under Section 65-B(4) of the Evidence Act happened to be the son of the petitioner, the position of law will not change.
21. Reliance placed by the learned counsel appearing for the respondent nos. 1 to 4 and 7 to 10 on the aforementioned judgments in the case of Bipin Shantilal Panchal v. State of Gujarat, Sanjay s/o Shankar Bhalkar v. The State of Maharashtra and R.K. Chandolia v. CBI (supra) cannot be of much assistance to the respondents. This is because the aforesaid judgments pertain to the extent and the manner in which a witness can be cross examined. It has been laid down that the witness cannot be cross examined in a reckless and scandalous manner and irrelevant cross examination of the witness cannot be permitted. The duty of the Court is to ensure that cross examination does not become a means of harassment or causes humiliation to the witness. There can be no quarrel with the said proposition. But, the said judgments do not support the contention raised on behalf of the respondents and the view taken by the Court below while passing the impugned order. The extent to which the witness can be cross examined could be discussed only if the son of the petitioner in the present case could be treated as a witness.
22. As noted above, Section 139 of the Evidence Act would apply to the facts of the present case and the objection raised on behalf of the petitioners ought to have been sustained by the Court below.
23. In the case of Vishwa Vijay Bharati v. Fakhrul Hasan, (1976) 3 SCC 642, the Hon'ble Supreme Court in the context of a person summoned for producing power of attorney before the Court, held that the other side could not take advantage of summoning of such a person by cross examining him because under section 139 of the Evidence Act he could not become a witness in the case and therefore, could not have been crossed examined on the merits of the case. The relevant portion of the said judgment reads as follows:—
“11 : The High Court assumed erroneously that the District Court had not given any finding on the question of fraud and on that assumption, it accepted mechanically the entries in the revenue record showing that the respondents were in possession of the lands as occupants. The learned District Judge, by his judgment dated April 18, 1962 had gone in great details into the question whether the particular entries showing that the respondents were occupants of the land were genuine or fraudulent. Those entries are Exs. A-5 to A-12. As pointed out by the learned Judge, the original lessee Sukai had migrated to Bombay after handing over the charge of the lands to his nephews who got the names of the respondents entered in the revenue record “surreptitiously”. The learned Judge points out that Fakhrul Hasan, who alone was examined on behalf of the respondents, was just a lad of 10 at the time when he is alleged to have entered into adverse possession of the lands. Neither Sukai, who was the original lessee, nor Haqiqullah and Ghani who were said to be cultivating the lands under a power of attorney executed by Sukai, were examined by the respondents. The other respondent Sanaullah was not living in the village at all and is said to have been doing business in second-hand spares in Bombay. Haqiqullah was summoned by the appellant for producing the power of attorney dated July 27, 1942 and taking advantage of that opportunity the respondents cross-examined him. Haqiqullah, being a close relation of the respondents was only too willing to oblige them by giving pre-conceived answers in the so-called cross-examination. But the learned trial Judge overlooked that Haqiqullah was only summoned to produce a document and by reason of section 139 of the Evidence Act he could not become a witness in the case and could not therefore have been cross-examined on the merits of the case.”
24. In the case of Shakuntala Jagdish Ghengat v. Municipal Corporation, Jalgaon, (2011) 2 Mah LJ 32, while considering the scope of Section 139 of the Evidence Act in the facts of the said case, it was held as follows:—
“14. I have perused the contents of the petitions, annexures thereto, as well as perused the impugned order and considered the submissions advanced by the learned counsel for the parties. It is apparent from the impugned order itself that the petitioners herein have adduced oral evidence by way of affidavit and the learned Counsel for the Respondent cross-examined them and, thereafter, applications were preferred by the petitioners for issuance of witness summonses which were allowed, and accordingly, witness summonses were issued to the witness of the Petitioner as prayed for. At that juncture, an affidavit was filed by one Mr. M.A. Pathan on 6.10.2009, on behalf of the Respondent-Corporation in pursuance of the order passed by the learned Labour Court, Jalgaon, to produce the documents and thereafter the petitioners herein preferred application dated 8.10.2009 to call the said deponent for the cross examination. Hence, it is apparent that even the evidence of the petitioner has not been completed so far, and, therefore, the learned Judge of the Labour Court rightly observed that the question does not arise to call the deponent of the affidavit dated 6.10.2009 for cross examination as prayed for by the present petitioner.
15. Moreover, it is explicitly clear from the affidavit dated 6.10.2009 filed by the deponent on behalf of the Respondent that it is not the affidavit of evidence filed in lieu of examination-in-chief and as per Section 139 of the Indian Evidence Act, 1872, a person summoned to produce the documents does not become a witness and cannot be cross examined, unless and until he is called as a witness.”
25. In the case of Kotulpur Farmers Service Co-operative Society Ltd. v. Sayera Bibi, 2019 SCC OnLine Cal 2286, the Calcutta High Court has also held that when a person was called only to produce a document, Section 139 of the Evidence Act squarely applied and that such a person, also a defendant in the said case, could not be treated as a witness for the purpose of cross examination and that the trial Court had rightly rejected the prayer for the cross examination of the said witness.
26. This Court is of the opinion that the Court below committed an error in passing the impugned order and in overruling the objection raised on behalf of the petitioners. The said objection ought to have been sustained, in the light of Section 139 of the Evidence Act.
27. Accordingly, the Writ Petition is allowed and the impugned order dated 13.8.2021 passed by the Court below, overruling the aforesaid objection raised on behalf of the petitioner, is quashed and set aside. Consequently, it is directed that the cross examination of the son of the petitioner beyond the certificate issued under Section 65-B (4) at Exh. 82 and photographs produced therewith, shall stand expunged from the records of the Court below.
28. In view of the direction already given by this Court in Appeal From Order No. 1/2020, the proceedings before the Court below shall be undertaken expeditiously, to complete the trial and dispose of the suit by 30.12.2021.
29. Writ Petition stands disposed of.
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