S. Haqub, J.@mdashThe Petitioner Shri. Harold D. Santos Defendant of the Title Suit No. 18 (T)/81 of the court of Assistant to the Deputy Commissioner, Shillong impugned the judgment and order dt. 15.3.86 passed by the learned District Judge-cum-Additional Deputy Commissioner, Shillong in Misc. Civil Appeal No. 16 (T)/85 affirming the order dt. 12.8.85 passed in Title Suit No. 18 (T)/81.
2. In due course of the proceeding of the suit both the Plaintiff and the Defendant filed their lists of witnesses and documents no prove their respective cases. Mr. U. Guidittee was shown as witness No. 1 for the Defendant in the list dt. 3.9.84. He was not a witness for the Plaintiff. But surprisingly he was brought to the dock as a witness No. 3 for the Plaintiff. During the course of cross-examining him, the Defendant produced an affidavit before him (P.W.-3), which he had sworn at an anterior point of time, in order to refresh his memory and to test his versity with reference to some statement of facts relating to the suit property. At this stage the Plaintiff raised objection. On heating the counsels of parties, the trial Court passed the order dt. 27.6.85 rejecting the objection of the Plaintiff and allowed the Defendant to cross-examine PW-3 with reference to the said affidavit and to receive the documents in evidence. Subsequently, the Plaintiff again filed an application to review the said order dt. 27.6.85 and the matter was reheard. The trial Court by this order dt. 12.3.85 revised his previous order dt. 27.6.85 and disallowed the Defendant to introduce the said documents into the evidence. Being aggrieved with the said order dt. 12.8.85, etc. Defendant preferred an appeal (Misc. Civil Appeal No. 16 (0)/85) before the District Judge cum-Additional Deputy Commissioner, Shillong. The said appeal was also dismissed and the order dt. 12.8.85 was affirmed. This led the Defendant to file the instant revision.
3. Learned Counsel Mr. K.B. Paul for the Petitioner Defendant submits that the law is clear on this point, He refers to be provision of Order 8 Rule 1(6) and Rule 8(A)(3); Order if Rule 2 Sub-rule (2) in this regard. Mr. Paul relied the decision in
4. The point in quest is whether Defendant has right to introduce a document not earlier indicated in his lists of documents at the stage of cross-examining the witness of the Plaintiff and to receive it m evidence as document for Defendant. The answer is available in Rule 1(6) and Rule 8(A)(3) of order 8, as well as in Order 13 Rule 2(2). Reception of documents in evidence is prohibited under Order 8 Rule 1(5) at the heading of the suit, if not already entered in the list of the documents under Order 8 Rule 1(2) on behalf of the Defendant, without leave of the Court. Order 8 Rule 1(2) and Order 8 Rule 1(5) are confined only to such documents that support the defence of the claim for the set off or counter claim and would not include a document with which the Plaintiff''s witness is to be confronted during the course of his cross-examination. it is more explicit by Order 8 Rule 1(6) by stating that the bar against the reception of document in evidence, unless entered in the lists without leave of the Court, would not apply to documents produced for the cross-examination of the witness of the Plaintiff or is answer to a case set up by the Plaintiff subsequent to the filing of the plaint or handover to a witness of the Plaintiff merely to refresh his memory. Again an exception to Order 8 Rule 8A(1) and (2) is carved out under Order 8 Rule 8A(3) to the effect that nothing in that Rule shall apply to documents produced for the cross-examination of the Plaintiff''s witness 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 to refresh his memory. Order 13 Rule 2(2) again excepts the applicability to Rule 2(1) of Order 13, to the documents produced for the cross-examination of the witnesses of the other party or handed over to a witness merely to refresh his memory. Therefore, it was made cleat by the provisions of Order 8 Rule 1(2) and (vi) read with Rule 8A(1) and (3) and also Order 13 Rule 2(2) that at every stage at which the Defendant is called upon to produce the document and exception is always made with reference to document produced for cross-examination of the Plaintiff''s witness or the cross-examination of the witness of the other party or in answer to a case set up by the Plaintiff subsequent to filing of the plaint, or with a view to refresh memory. In other words obligation to produce the documents relied upon by the Defendant at the stage contemplated under Order 8 Rule 1(2) and Rule 8A(1) and by both the parties under Order 13 Rule 1 CPC has been done away within all those cases with reference to documents produced for cross-examination.
5. All these exceptional provisions referred to above are fitting to the instant case. The Defendant produced the document (affidavit) during the cross examination of the witness (PW-3) of the Plaintiff in order to refresh his memory in respect of the facts which he had sworn at an anterior point of time having relation with the property in suit. The PW-3 will be cross-examined and confronted with reference to the contents or statements in that affidavit (document). If the document is not received in evidence as document for the party cross-examining (Defendant), then the entire purpose of the exceptional provisions allowing to produce the document would be ineffective. The prohibition under Rule 1(5) of Order 8 and under Rule 8A(2) so receive the document of the Defendant in evidence is not an absolute prohibition. It is in this provision that such documents can be allowed to receive in evidence with the leave of the Court. But these prohibitory provisions shall not be made applicable in case of documents produced for the propose indicated in the exceptional provisions Sub-rule (6) of Rule 1 and sub rule (3) of Rule 8A of order-VIII. Same is the case in Sub-rule (2) of Rule 2 of Order-VIII. Therefore, the documents product under these exceptional provisions for the purpose specified therein is to be received in evidence as document for the party producing it. In the instant case the affidavit in question is to be received in evidence as a document for the Defendant because the witness (No. 3) will be cross-examined with reference to that document and would be confronted with his reference made in that affidavit at an anterior point of time.
6. While framing the above referred provisions of the Code of Civil Procedure, the legislatures anticipated that occasions may arise to the Defendant or to the Plaintiff during the course of the trial particularly during cross-examination of the witness of the other party, document may be required to be produced which document the party did not consider to be entered in the list, for the purpose of cross-examining that witness. Therefore, the exceptions to be general rule of prohibition as to the filing and production of documents have been made to meet such situations. The instant case appear to be of such a peculiar nature, because the witness of the Defendant has turned to be the witness (PW-3) for the Plaintiff in order to support the case of the Plaintiff which is contrary to the facts and statements sworn by him (PW-3) in that affidavit at an anterior point of time. Therefore, the said document (Affidavit) h to be received in evidence as an exhibited document for the Defendant of the suit.
7. It may be mentioned, that Order 7 Rule 18(2) of the CPC gives the benefit of such an exception to the Plaintiff while the Defendant''s witnesses are being cross-examined. Thus, the benefit of the production of document for the purpose of cross-examination can be availed of either by the Plaintiff or by the Defendant with reference to the witnesses of the other party.
8. The appellate Court below committed error in passing the impugned order dated 15.3.86 affirming the order dt. 12.8.85 of the trial Court. This revision is allowed. The impugned order dt. 15.3.86 in Criminal Misc. Civil Appeal No. 16(T)/85 of the Court of the District Judge-Cum-Additional Deputy Commissioner, Shillong affirming the order dated 12.8.85 in Title Suit No. 18 (T)/81 of the Court of Assistant to the Deputy Commissioner, Shillong is set aside. The earlier order dated 27.6.85 of the trial Court is upheld. The Trial Court stall allow the Defendant to introduce the said document (affidavit) for the purpose of cross-examining U Guiditee (PW-3) and to receive the same in evidence as documents for the Defendant.
9.This revision is allowed. Send down the records to the trial Court immediately.
