T.M. Mohana vs V. Kannan

The defendant in O. S. No. 116 of 1979. I Additional Sub-Court Pondicherry, is the petitioner in this civil revision petition, which is directed

against the order of the Court below, holding that the petitioner cannot confront the respondent herein with a'' document not filed or disclosed

earlier in the course of his cross-examination as P.W. 1, without obtaining prior leave of the Court by filing an application to receive the document

after notice to the respondent, In the suit, the respondent has prayed for the relief of recovery of money against the petitioner being the value of the

construction work done by him and also cost of materials stated to have been unlawfully taken by the petitioner and other incidental reliefs. This

claim of the respondent has been denied by the petitioner in her written statement on several grounds, which need not be noticed in detail. On 6-

10-1982, at the time of the cross-examination of the respondent as P.W. 1, the petitioner''s counsel confronted the respondent with a document

then produced by the petitioner. An objection was raised by the respondent that that document was not brought before the Court or to the notice

of the Court in accordance with the provisions of Order 8 Rule 1 (2) C.P.C. and the petitioner cannot bypass those mandatory provisions by

resorting to Order 13, Rule 2 (2) (a) C. P. C. and that in any event, the petitioner should have obtained leave of Court under Order 8, Rule 5 C.

P. C. to produce the document with which P. W. 1, was confronted. The Court below upheld this objection holding that the petitioner is not

entitled to confront the respondent examined as P. W. 1, with the document during his cross-examination without filing an application to receive

that document after notice to the respondent.

The learned counsel for the petitioner submitted that a document intended to be produced or produced or during the course of cross-

examination of the respondent need not be included in the list of documents annexed to the written statement either under Order 8, Rule 1 (2) (a)

or Order 8, Rule l (2) (b), C. P. C. and a failure to do so, would not result in such a document not being received in evidence without leave of

Court under Order 8, Rule 1 (5) C. P. C. It was further submitted that as O. 8, Rule 1 (6) C. P. C., specifically excludes the applicability of Order

8, Rule 1 (5) C. P. C., to documents produced for the cross-examination of the witnesses of the plaintiff or in answer to any case set up by the

plaintiff subsequent to the filing of the plaint, or handed over to a witness for the purpose of refreshing his memory, there was no need to obtain

leave of Court. The learned counsel also drew attention to Order 8, R. 8-A (3) C. P. C. which similarly excepted documents produced for the

cross-examination of the plaintiff''s witnesses from being produced by the defendant under Order 8, Rule 8-A (1) C. P. C. Reliance was also

placed by the learned counsel upon the provisions of Order 13, Rule 2 (2) (a) C. P. C. to contend that where the document is produced for the

cross-examination of a witness of the other side, its earlier production or inclusion in the list of documents or even the obtaining of the leave of

Court, would be wholly unnecessary. Ranajit Kanungo Vs. Ibcon Pvt. Ltd., was also relied on in this connection.

On the other hand, the learned counsel for the respondent contended that the newly introduced provisions under Order 8, Rule 1 (2) to (4) and

Order 8, Rule 8-A (1) C. P. C, contemplated disclosure by the defendant of his documents so as to prevent the defendant from concealing the

contents of the document and later springing a surprise on the plaintiff and that was why if a document was not disclosed in the list, it could not be

received in evidence without leave of Court and that the rigour of those provisions cannot be nullified by resorting to Order 13 Rule 2 (2) (a) C. P.

C. It was also further contended by the learned counsel for the respondent that the exception under Order 8, Rule 1 (6) and Order 8, R. 8-A (3)

C. P. C. if at all, may apply in relation to the cross-examination of the witnesses on behalf of the party and not the party himself, when examined,

as in this case.

Before embarking upon a consideration of these rival submissions, it is necessary to notice the provisions of Order 8, Rule 13, C. P. C. newly

introduced by Act 104 of 1976. Order 8 C. P. C. underwent substantial changes as a result of Act 104 of 1976. Even the heading of the order

had been changed in view of the inclusion of certain provisions relating to counter-claims. Apart from making the filling of a written statement by the

defendant almost compulsory under Order 8, Rule 1 (1) C. P. C. several other requirements to be observed and fulfilled at the time of the filing of

the written statement have also been specified. Order 8, Rule 1 (2) C. P. C. provides that save as otherwise provided in Rule 8-A, where reliance

is placed by the defendant on any document, be it or be it not in his possession or power, in support of his defence or claim, for set-off or counter-

claim, such, document shall be entered in a list and that list should be annexed to the written statement, if a written statement is presented. The

proviso to Order 8, Rule 1 (2) (a) C. P. C. states that if in the written statement, the defendant sets up a claim for set-off or makes a counterclaim

based on a document in his possession or power, such document shall be produced in Court at the time of the presentation of the written statement

and the document or a copy thereof should also be delivered at the same time to be filed with the written statement. This is comparable to that

applicable to the plaintiff under Order 7 Rule (1) C. P. C. Order 8 Rule 1 (2) (b) C. P. C. provides that if the defendant does not present a written

statement, then he shall present a list wherein such documents which the defendant relies in support of his defence or claim for set-off or counter-

claim are entered at the first hearing of the suit. Under O. 8 Rule 1 (3) C. P. C. if any such document relied on by the defendant in support of his

defence or claim for set-off or counter-claim is not in the possession or power of the defendant, the defendant shall state, wherever possible, in

whose possession or power it is. The Court under Order 8, Rule 1 (4) C. P. C. is empowered to allow the defendant such further period as the

Court may think to enable the defendant to annex or present a list. Then occurs Order 8, Rule 1 (5) C. P. C. which prohibits the receiving of

documents, which should be entered in the list under Order 8, Rule 1 (2) C. P. C., but not so entered in evidence at the hearing of the suit on

behalf of the defendant, without leave of Court. Order 8, Rule 1 (5) C. P. C. refers in turn to Order 8, Rule 1 (2) C. P. C. and that would take in

only such documents as support the defence or the claim for set-off or counter-claim and would not take in a document with which the plaintiff''s

witness is confronted-during the course of his cross-examination. This is made more explicit by Order 8, Rule 1 (6) C. P. C. by stating that the bar

against the reception of documents in evidence unless entered in the list without leave of Court would not apply to documents produced for the

cross-examination of the witnesses of the plaintiff or in answer to a case set up by the plaintiff subsequent to the filing of the plaint or handed over

to a plaintiff merely to refresh his memory. All these changes in Order 8, Rule 1 (2) to (7) C. P. C. providing for the filing of the documents and

also a list by the defendant along with the written statement have been made in view of similar provisions applicable to the plaintiff under Order 7,

Rule 14 C. P. C. whereunder the plaintiff is compelled to produce the documents upon which he sues if they are in his possession or power.

Besides, these provisions also compel the defendant to produce those documents upon which a counter-claim or a set-off is based if such

documents are in his possession or power.

Order 8, Rule 8-A C. P. C., require the production in Court of a document in the possession or power of a defendant, on which the defendant

bases his defence at the time when the written statement is presented by him and further requires that the document or a copy thereof, should be

delivered to be filed with the written statement. While Order 8, Rule 1 (2) C. P. C. makes a general provision with reference to documents on

which reliance is placed by the defendant in support of his defence or claim for set-off or counter-claim, that is made subject to Order 8, R. 8-A.

C. P. C. which relates to a document on which the defence is based by the defendant and with reference to such a document, Order 8, Rule 8-A

(2) C. P. C. states that if it is not so produced in accordance with Order 8, Rule 8-A (1) C. P. C., then, the document shall not, without the leave

of the Court, be received in evidence on behalf of the defendant at the hearing of the suit. An exception to Order 8, Rule 8-A (1) and (2) C. P. C.

is again carved out under O. 8, Rule 8-A (3) C. P. C. to the effect that nothing in this rule shall apply to documents produced for the cross-

examination, of the plaintiff''s witnesses or in answer to any case set up by the plaintiff subsequent to the filing of the plaint or a document handed

over to a witness merely to refresh his memory. It is thus clear from Order 8, Rule 1 (6) and Order 8, Rule 8-A (3), C. P. C., that with reference

to the documents dealt with under Order 8, Rule 1 (2) and Order 8, Rule 8-A (1) C. P. C. nothing contained therein will apply with reference to

documents produced for the cross-examination of the plaintiff''s witnesses. The new provisions made under Order 8, Rule 1 (2) to (6) and Order

8, Rule 8-A (1) to (3) C. P. C. are comparable to the similar provisions found already in the Civil P. C. with reference to the documents of the

plaintiff, namely Order 7. Rules 14 (1) and (2), 15 and 18 (1) and (2) C. P. C.

Now the provisions of Order 13, Rules 1 and 2. C. P. C. may be referred to Order 13, Rule 1 C. P. C. requires that all, documentary evidence

of every description in the possession or power of the parties on which the parties intend to rely, and which has not already been filed into Court,

be produced at or before the settlement of the issues and also the other documents, which the Court had ordered to be produced. This stage for

production contemplated by Order 13, Rule 1 C. P. C. is very much posterior to the production of documents under O. 8, Rule 1 (2) and Order 8

Rule 8-A (1) C. P. C. With reference to such documents so produced. Order 13, Rule 1 (2) C. P. C. provides that the Court shall receive the

documents so produced, provided the documents are accompanied by a list prepared in the prescribed form. Order 13, Rule 2 (1) C. P. C.

enacts that if all the documents as required under Order 13, Rule I C. P. C. have not been produced, then, no such document shall be received at

any subsequent stage of the proceeding, unless good cause for non-production is shown to the satisfaction of the Court. That provision also enjoins

the Court to record the reasons for receiving the documents so produced. Even with reference to such documents as may be produced and

received under Order 13, Rule 1 C. P. C., Order 13 Rule 2 (2), C. P. C. again excepts the applicability of Rule 2 (1) of Order 13, C. P. C. to

documents produced for the cross-examination of the witnesses of the other party or handed over to a witness merely to refresh his memory.

A Change in Order 13, Rule 1, C. P. C. has been made to provide that the documentary evidence should be produced at or before the issues

are settled. Order 13, Rule 2 C. P. C. enacts a prohibition against the reception of documents at a subsequent stage of the proceedings when such

documents should have been produced at an earlier stage, but not so produced, unless the Court is satisfied that there was a good cause for such

non-production even at an earlier stage. Besides, the amendment also clarifies that documents produced for cross-examination do not fall within

the ambit of this rule.

Thus it is seen from the provisions of O. 8 R. 1 (2) and (6) O. 8 R. 8-A (1) and (3) and Order 13, Rule 2 (2) C.P.C. that at every stage at

which the defendant is called upon to produce the documents, an exception is always made with reference to documents produced for the cross-

examination of the plaintiff''s witnesses or the cross-examination of the witnesses of the other party or in answer to a case set up by the plaintiff

subsequent to the filing of the suit or with a view to refresh memory. In other words, the obligation to produce the documents relied upon by the

defendant at the stages contemplated under O. 8, R. 1 (2), O. 8 R. 8-A (1) and by both parties under O. 13 R. 1 C.P.C. has been done away

with in all those cases with reference to documents produced for cross-examination. That would mean that a defendant in the suit confronting the

plaintiff''s witnesses, as in this case, need not disclose the document in the list or produce the document at an anterior point of time or even seek

and obtain the leave of Court for tendering such a document in the course of the cross-examination of the witness of the other side.

The argument of the learned counsel for the respondent that the exception carved out in Order 8, Rule 1(6) and Order 8, Rule 8-A (3) C.P.C.

for the production of a document in the course of the cross-examination can be availed of only when the witness, who is so confronted with the

document, is a witness on behalf of the party and not the party himself, is not tenable. Avowedly, the provisions of Order 8, Rule 1 (6) and Order

8, Rule 8-A (3) C. P. C. are applicable to defendants as they contemplate the crow-examination of the witnesses of the plaintiff by the defendant

and documents being put to them without any distinction being made regarding such witnesses as party witnesses and other witnesses. Those

provisions are, therefore, intended to make available the benefit of the exception to the defendant generally with reference to all witnesses of the

plaintiff including the plaintiff. Order 7, Rule 18 (2) C. P. C. gives the benefit of such an exception to the plaintiff while the defendant''s witnesses

are being cross-examined. Order 8, Rule 1 (6) and Order 8, R. 8-A (3) C. P. C. extends such benefits to the defendants when the plaintiff''s

witnesses are cross-examined. On the other hand, Order 13, Rule 2 C. P. C. being a general provision applicable to both the plaintiff as well as

the defendant makes available to both the benefit of the production of such documents during the course of the cross-examination of the other

party. Thus, the benefit of the production of a document for purposes of cross-examination can be availed of either by the plaintiff or by the

defendant with reference to the witnesses of the other party. Having regard to the use of the expression ''defendant''s witnesses'' in Order 7, Rule

18 (2) C. P. C. and the expression ''plaintiffs witness'' in O. 8, Rule 1 (6) and Order 8, R. 8-A (3) C. P. C. and the expression ''witnesses of the

other party'' in Order 13, R. 2 (2) (a) C. P. C. it is difficult to confine the benefit conferred under Order 8, R. 1 (6) and Order 8, Rule 8-A (3) (a)

C. P. C. only to cases of witnesses other than the party. To put it differently, the expression ''plaintiff''s witnesses'' would take in not only the

witnesses on behalf of the plaintiff, but also the plaintiff himself when he is examined as a witness in support of his case.

The scope and effect of Order 7, Rules 14 and 18 (1) and (2) C. P. C. came to be considered in Lakhpat Pathak Vs. Ghiran Pathak and

Others, , wherein it has been held that the penalty for the non-production of a document under Order 7, Rule 14 is provided for in O. 7, Rule 18

(1) C. P. C. and that Order 7, Rule 18 (2) C. P. C. is an exception to order 7, Rule 18 (1), C. P. C. and further that it is open to a plaintiff to

tender in evidence the previous statement in writing by the defendant in the cross-examination of the defendant for the purpose of contradicting

him, even though such a document was not produced by the plaintiff under Order 7, Rule 14 C. P. C. No doubt, this decision has been rendered

with reference to a converse case wherein the document had been produced by the plaintiff in the course of the cross-examination of the

defendant. But in view of the provisions of the Civil P. C., referred to earlier, the principle that would be applicable would be the same,

irrespective of whether it is the plaintiff or the defendant or their witness who is confronted with the document produced by the other side,

especially when the scope and ambit of the exception carved out under Order 7, Rule 18 (1), Order 8, Rule 1 (6), Order 8, Rule 8-A (3) and

Order 13 Rule 2 (2) (a) P. C. are the same. In Ranajit Kanungo Vs. Ibcon Pvt. Ltd., , the defendant was confronted with certain documents

during the course of the cross-examination for the purpose of testing the veracity of the witness and the trial court took the view that as the

documents had not been produced at the stage of production of the documents, it cannot be permitted. However, the High Court held that in view

of O. 13, R. 2 (2) (a) C. P. C. such a document intended to be used in the cross-examination of the witness is not required to be shown or

produced at the stage of production of documents. From the above decisions also, it is clear that where the document relied upon is intended to be

put to a witness in the course of his cross-examination, it is not necessary that such a document should be disclosed earlier or that leave of court

should be obtained for so producing the documents to the witnesses in the course of cross-examination, Having regard to these considerations, the

court below was in error when it declined to permit the petitioner to confront the respondent with the documents produced by the petitioner in the

course of the cross-examination of the, respondent without an application to receive the document after notice to the respondent. Consequently,

the civil revision petition is allowed, but there will be no order as to costs.

Revision allowed