The Supreme Court held that there is no difference between a party to suit acting as a witness and a witness simpliciter in the suit proceedings.

The Court thus held that production of documents for both a party to the suit and a witness as the case may be, at the stage of cross-examination, is permissible.

The Court held thus in an appeal preferred against the judgment of the Bombay High Court by which the Division Bench had answered three questions framed by the Single Judge in view of the two conflicting decisions i.e., Vinayak M Dessai v. Ulhas N. Naik and Ors. (2017 SCCOnLine Bom 8515) and Purushottam v. Gajanan (2012 SCCOnLine Bom 1176).

The two-Judge Bench of Justice B.R. Gavai and Justice Sanjay Karol observed, that “ there is no difference between a party to a suit as a witness and a witness simpliciter- the second issue in this appeal, in view of the provisions noticed above, production of documents for both a party to the suit and a witness as the case may be, at the stage of cross-examination, is permissible within law”

Senior Advocate Huzefa Ahmadi appeared for the appellant while Advocate R.S. Sundaram appeared for the respondents.

In this case, the questions that arose before the Court for its consideration were –

a) Whether under the Code of Civil Procedure, there is envisaged, a difference between a party to a suit and a witness in a suit? In other words, does the phrase plaintiff’s/ defendant’s witness exclude the plaintiff or defendant themselves, when they appear as witnesses in their own cause?

b) Whether, under law, and more specifically, Order VII Rule 14; Order VIII Rule 1-A; Order XIII Rule 1 etc, enjoin the party under-taking cross examination of a party to a suit from producing documents, for the purposes thereof, by virtue of the use of the phrase(s) plaintiff/defendant’s witness or witnesses of the other party, when cross examining the opposite party?

The Court referred to the objectives in framing rules for conducting the civil proceedings and the Halsbury’s Law of England state the following overriding objectives of the Civil Procedure Rules –

(i) ensuring that the parties are on equal footing;

(ii) saving expense;

(iii) dealing with the case in ways which are proportionate: (a) to the amount of money involved; (b) to the importance of the case; (c) to the complexity of the issues; and (d) to the financial position of each party; (iv) ensuring that it is dealt with expeditiously and fairly; and (v) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and (vi) enforcing compliance with rules, practice directions and orders.

The Apex Court in the above context noted, “The parties are required to help the court to further the overriding objective. Undoubtedly, perhaps unquestionably, the same objectives guide the interpretation of the Code of Civil Procedure 1908. … A simple brushing off by saying that “merely because” one provision mentions them to be performing similar functions, they are not to be equated, cannot be allowed. No proper reason is forthcoming from a perusal of the extracted portion or otherwise for the differentiation which is between a witness in the witness box and the conduct of a party appearing as a witness in the witness box. In our considered view, this distinction does not rest on firm ground.”

The Court added that the function performed by either a witness or a party to a suit when in the witness box is the same and that the phrase “so far as it is applicable" in Order XVI Rule 21 does not suggest a difference in the function performed.

“The differentiation between the party to a suit and a witness, as is made clear by our earlier discussion, is not something that gels with the law. As has been hitherto observed, the term witness does not exclude the party to the suit i.e., the Plaintiff or the Defendant, themselves appearing before the court to enter evidence”, clarified the Court.

The Court said that the freedom to produce documents for either of the two purposes i.e., cross examination of witnesses and/or refreshing the memory would serve its purposes for parties to the suit as well.

“Additionally, being precluded from effectively putting questions to and receiving answers from either party to a suit, with the aid of these documents will put the other at risk of not being able to put forth the complete veracity of their claim- thereby fatally compromising the said proceedings. Therefore, the proposition that the law differentiates between a party to a suit and a witness for the purposes of evidence is negated. … It is settled law that what is not pleaded cannot be argued, as for the purposes of adjudication, it is necessary for the other party to know the contours of the case it is required to meet. It is equally well settled that the requirement of having to plead a particular argument does not include exhaustively doing so”, further observed the Court.

The Court, therefore, held that there is no difference between a party to suit as a witness and a witness simpliciter and that the production of documents for both a party to the suit and a witness at the stage of cross-examination is permissible within law.

Accordingly, the Supreme Court allowed the appeal.

Cause Title- Mohammed Abdul Wahid v. Nilofer & Anr. (Neutral Citation: 2023 INSC 1075)


Appellant: Senior Advocate Vinay Navare, Advocates Masood Shareef, Satyajit A Desai, Yougant Dhillon, Siddharth Gautam, Abhinav K. Mutyalwar, Gajanan N Tirthkar, Vijay Raj Singh Chouhan, and Aishwariya Shinde, AOR Anagha S. Desai, Advocate Sudhanshu S Choudhari, and AOR Vatsalya Vigya.

Respondents: Advocate R S Sundaram, AOR P. N. Gupta, Advocates Ramaswamy Sundaram, Bharti Gupta, Aashima Gupta, Naresh Kaushik, Manoj Joshi, Anand Singh, Shubham Dwivedi, Shikha John, Lalitha Kaushik, Akshata Singh, Rahul Sharma, AORs Vardhman Kaushik and Somanatha Padhan.

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