Producing documents during cross-examination of a party to the suit.

I recently read a judgment of the Bombay High Court which thew some light on the question of filing of documents in a civil suit at a stage later than filing of the plaint or written statement, as the case may be. The High Court was faced with the question as to whether a party to a civil suit produce documents before the court at the time of cross examination of the other party. Such a question arises in light of provisions contained in order 7 rule 14 of the Civil Procedure Code read with Order 13 rule 1 thereof. Order 7 rule 14 of CPC essentially states that documents relied upon by a plaintiff to a civil suit cannot, generally, be filed at a stage later than filing of plaint. However, the rule carves out an exception for a document produced during the cross examination of witness of the other party. Order 13 rule 1 States that originals of documents find along with the plaint have to be produced on or before the settlement of issues by the trial court. Such original documents produced before the court at this stage are usually seen and returned by the court after inspection by the other party. Order 13 rule 1 also states that nothing in this rule shall apply to Documents produced during cross examination of witnesses of the other party. Now, assume a hypothetical scenario where a plaintiff does not file any document along with the plaint and chooses to produce documents in support of plaint only during cross examination of the defendant’s witness. Going by the aforesaid rules, he can do that subject to rules of the Evidence Act. However, can he also produce documents while cross examining the defendant himself who has stepped into the witness box as a witness? If that is found to be correct, then least in theory, a plaintiff may not file any document along with the plaint in a given case, and may simply choose to produce them during cross examination of the defendant who enters the witness box. Of course, this is subject to the rules of Evidence Act, particularly section 145, wherein only those statements can be confronted to a witness during the cross examination which are made by him in writing or reduced into writing. However, assuming that the class of document otherwise satisfies the rules of Evidence Act, is the plaintiff at liberty to produce the document for the first time during the cross examination of the defendant without having produced it at the time of filing of the plaint? The High Court in the case at hand, when faced with this question, relied upon prior judgements of the same High Court to hold that the term ‘witness’ in order 13 rule 1 CPC cannot be held to include a party to a civil suit in witness box as it will render provisions of order 7 rule 14 and order 8 rule 1A CPC otiose. It is a standard rule of interpretation that a provision should not be construed in isolation and should be read along with other provisions of the statue and any interpretation that will render any other provision of the statute redundant should be avoided. Going by the said rule of interpretation, if the Court holds that order 13 rule 1, insofar as it permits a document to be produced for cross examination of other party’s witness, is held to include a party itself as a witness, then a party to the suit may be taken by surprise during the cross examination as that particular document need not be filed at the time of filing of plaint. To prevent such an anomaly, the court held that the term ‘witness’ appearing in order 13 rule 1 will only include a witness called by a party to the suit and not the party itself appearing as a witness in that suit. This would essentially mean that a party to a suit will not be taken by surprise by the other party during the cross examination. So, the law stands, at least in Maharashtra, that a plaintiff or defendant, during the cross examination, cannot be confronted with a document which has not been filed along with the plaint or written statement, as the case may be. So essentially, if a party to a suit seeks to produce certain document which has not been produced at the time of filing of plaint or written statement then it will have to seek leave of the court to file that particular document under Order 7 rule 14 instead of directly confronting the plaintiff or the defendant, as the case may be, with that document in cross examination. It will be interesting to see if other high courts have also held on similar line with respect to the issue at hand.

The judgment of the Bombay High Court being discussed here is Vinayak
Desai v. Ulhas Naik.


© 2020 Harshvardhan Pandey

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