Union of India (UOI) and Another vs B.D. Sharma

M.A. Shah, J.—This revision is directed against the order passed by Sub-Judge (C.J.M.), Jammu on 3rd Jan., 1987 disallowing the

Petitioners to produce a document during the cross-examination of the Plaintiff.

Briefly stated the facts giving rise to the present revision are that in a suit pending before Sub-Judge (C.J.M.), Jammu filed by the Respondent

against the present Petitioners for declaration regarding the date of birth entered in the service record, which is resisted by the Respondent. While

the statement of the Plaintiff was in progress, the Petitioners wanted to introduce a document in the cross-examination of the Plaintiff. The said

document was neither earlier produced by the Respondent nor was in the list of reliance required to be submitted by the Defendants alongwith the

written statement as envisaged by Rule 8-A of Order 8 Code of Civil Procedure.

When the Petitioners tried to introduce that document during the course of cross-examination of the Plaintiff, an objection was raised by counsel

for the Plaintiff/Respondent that such a document cannot be tendered in evidence during the course of cross-examination of the Plaintiff unless the

same is produced in accordance with law with the leave of the court or by following the procedure prescribed under Order 13, Rule 2 Code of

Civil Procedure, the same is brought on record. Learned trial Judge after giving opportunity to the Petitioners of being heard sustained the

objections of the Respondent and disallowed the Petitioners to introduce the document to confront the Plaintiff during the course of the cross-

examination. The Petitioners being aggrieved against the said rejection filed this revision before This Court.

After notice to the Respondent on admission of the revision petition, the revision is strongly resisted by the Respondents by reiterating the plea

advanced before the learned trial Judge. Record was also sent for. It is not disputed that the document purported to have been introduced was

neither relied on by the Respondent by submitting a list of reliance nor the copy of the said document was produced with the written statement. No

application was either filed under Order 13 Rule 2 of the CPC to bring on record the document in question, on the contrary it has been argued that

in terms of Order 18 Rule 3A and Order 8 Rule 8A of Clause (3), Code of Civil Procedure, Plaintiff being a witness Defendant had all the right

under the Code to introduce such a document during the course of cross-examination of the Plaintiff.

It has been argued at length by learned Counsel for the Petitioners that for all purposes under the CPC as well as the provision of the Evidence

Act, Sections 132, 145 and 155 of the Evidence Act, a Plaintiff is a witness and therefore, the provisions regarding the introduction of the

document during the course of the cross-examination of even a Plaintiff are all attracted and, therefore, the rejection of the document to be

introduced in evidence to confront the Plaintiff by the learned trial Judge is against the spirit of law and without jurisdiction. Learned Counsel also

took me through the provisions of Sections 118 and 120 of the Evidence Act including the definition of the word 'witness' as defined in Aiyar's

Judicial Dictionary 9th Edition page 1040, which is reproduced by the learned trial Judge in the order itself in order to emphasise that Plaintiff

cannot be taken out of the category of witnesses for the purpose of cross-examination.

In reply learned Counsel for the Respondent contended that even that a Plaintiff is a witness for himself, but be cannot be put in a position of the

witnesses as envisaged by Order 18 Rule 3A and Order 8, Rule 8A of the Code of Civil Procedure. Reference is also made to the words used by

the legislature in contradistinction from the Plaintiff to that of a witness. As mentioned in Rule 3A of Order 18 although the precedent is given to the

party concerned when appearing as a witness of his own, but in Rule 8A of Order 8 by importing the words in Clause (3) of that rule:

Nothing in the rule shall apply to documents produced;

(a) for the cross examination of the Plaintiff’s witnesses,

(b) In answer to any case set up by the Plaintiff subsequent to the filing of the plaint, or

(c) handed over to a witness merely to refresh his memory.

are of great significance, which clearly indicate that legislature never intended to bring the Plaintiff in the category of such witnesses in the cross-

examination of whom a document not produced earlier are relied on by the adverse party can be introduced in evidence.

The learned trial Judge has taken into consideration all the aspects as pointed out hereinabove and in my opinion has come to a right conclusion

that the term ""witness"" for the purposes of producing a document by surprise in cross-examination of the Plaintiff cannot be stretched to the extent

of giving liberty to the Defendants to introduce a document by surprisingly taking up the Plaintiff, which was neither set up in the list of reliance nor

the copy of the same was produced along with the written statement. It is because of the fact that a witness is not bound by the pleadings whereas

parties are bound by the same. An adverse party cannot be taken by surprise in a Civil suit and, therefore, the legislature in its wisdom left the

liberty of introducing a document during the cross-examination of the witness only, which term does not include the Plaintiff to that extent: In this

view of the matter for that purpose the provisions of Sections 118, 120, 132, 145 & 155 of the Evidence Act cannot come to the rescue of the

Petitioners/Defendants to introduce a document during the cross-examination of the Plaintiff as was does in the present case. Even Rule 21 of

Order 16 uses the word with a great caution for the purpose of applicability to produce a document. The provisions made applicable to the parties

shall apply to him so far as they are applicable, makes it abundantly clear that the production of the document is subject to the limitations

prescribed under other provisions of the Code. I, therefore, find that the learned trial court has acted rightly within his jurisdiction by refusing the

Petitioners to introduce the document in cross-examination. The discretion exercised by him does not require interference in revision. However, as

observed by the learned trial Judge the findings herein will not debar the Petitioners/Defendants in the suit to introduce the document after the

application permissible under the CPC and the court when approached may consider the same on its own merits in accordance with law.

In the result, the revision fails, which is dismissed with costs. The Petitioners shall bear their own costs & pay that of the Respondent. Parties

through their counsel are directed to appear before the trial court on 15th July, 1988. Record be sent back. It also disposes of C.M.P. No. 21 of

1987 and the interim order passed on 21st Jan., 1987 stands vacated.