Rajiv Sahai Endlaw, J.@mdashThis petition raises questions of general importance, arising frequently in trials. The questions can be framed thus:
(i) What is the challenge/fate of the documents produced for the first time during the cross examination of a witness and which are denied by the witness? Whether the said documents are required to be retained/kept on the court file or merely because the witness has denied the document, the same has to be returned to the party which has produced the same?
(ii) If the said documents are to be kept on record/retained, what is the status thereof?
(iii) Whether a party producing the said document can prove the same at the stage of his own evidence or for the reason of having not produced it along with its plaint/written statement and having chosen to use it only during cross examination, is then barred from treating the document as own document and proving the same? Since I am unable to find any judgment completely considering the aspects and further since in my opinion these questions plague the courts on a daily basis, it is deemed appropriate to answer the same.
2. This petition under Article 227 of the Constitution of India is preferred by the defendant in the suit before the Trial Court and against the order dated 20th October, 2008 dismissing the application of the petitioner/defendant u/s 45 of the Indian Evidence Act.
3. The respondent/plaintiff instituted the suit from which this petition arises against the petitioner/defendant for recovery of money. It is inter alia the case of the respondent/plaintiff that he is the owner of certain land which had been acquired from the predecessor of the petitioner/defendant; that a notification for acquisition of the said land was issued; that he applied for compensation for such acquisition; however the petitioner/defendant filed objections against the release of compensation to the respondent/plaintiff and which objections were subsequently withdrawn by the petitioner/defendant; that owing to the objections having been filed, the release of compensation to the respondent/plaintiff was delayed. The respondent/plaintiff claims interest on the amount of compensation for the period of delay, so caused by the petitioner/defendant.
4. The petitioner/defendant contested the suit inter alia by controverting that the land had been transferred by his predecessor to the respondent/plaintiff/his predecessor; that the respondent/plaintiff had taken advantage of the illiteracy of the father of the petitioner/defendant and cheated him out of the land. The petitioner/defendant admitted having filed objections to the release of compensation to the respondent/plaintiff and also admitted having withdrawn the said objections. It is, however, his plea that the objections were withdrawn owing to compromise having been arrived at between the parties; however, the respondent/plaintiff again mischievously got the withdrawal application signed from him without disclosing that it had been falsely written therein that the petitioner/defendant had no documents of ownership of the land.
5. The petitioner/defendant during the cross examination of the respondent/plaintiff put to him a hand written document purporting to be a draft of the application for withdrawal of objections. It is inter alia the case of the petitioner/defendant that the said document is in the handwriting of the respondent/plaintiff and the withdrawal of objections was to be in terms of the said document. The respondent/plaintiff however when confronted with the said document denied the same to be in his handwriting and also denied the same to be the draft of the application for withdrawal to be filed and also denied any knowledge thereof. Ex.PW1/D1 was put on the said document and the same retained on file.
6. It is thereafter that the petitioner/defendant filed the application u/s 45 of the Indian Evidence Act (for comparison of handwriting on the said document with admitted handwriting of the respondent/plaintiff) and which has been dismissed by the order impugned in this petition. The trial court has held:
(a). That the petitioner/defendant has not mentioned the said document in his written statement; that the said document was not in accordance with the application for withdrawal of objections ultimately filed and copy whereof had been proved on the suit file.
(b). That the counsel for the respondent/plaintiff, at the time when the said document was confronted to the respondent/plaintiff had also raised objection as to the production, admissibility and mode of proof of the said document and the document was taken on record subject to the objections of the respondent/plaintiff. The Trial Court thus held that no case for comparing the handwriting on the said document with the admitted handwriting of the respondent/plaintiff arises.
7. This court while issuing notice of this petition held that the Trial Court before considering the application u/s 45 of the Evidence Act, should have first decided whether the document could be taken on record or not. Notice of the petition was issued to this limited extent.
8. Order 7 Rule 14(4), Order 8 Rule 1(A)(4), as well as Order 13 Rule 1(3) provide that the provisions requiring parties to file documents along with their pleadings and/or before the settlement of issues do not apply to documents produced for the cross examination of the witnesses of the other party. To the same effect, Section 145 of the Evidence Act also permits documents to be put to the witnesses, though it does not provide whether such documents should be already on the court record or can be produced/shown for the first time. However, in view of the unambiguous provisions of the CPC, it cannot be held that the document cannot be produced/shown for the first time during cross examination. If the witness to whom the said document is put, identifies his handwriting/signature or any writing/signatures of any other person on the said document or otherwise admits the said documents, the same poses no problem, because then the document stands admitted into evidence. However, the question arises as to what is the course to be followed if the witness denies the said document. Is the document to be kept on the court file or to be returned to the party producing the same?
9. This question also in my view is also not difficult to answer. It cannot possibly be said that the document should be returned to the party. If the document is so returned it will not be possible for the court to at a subsequent stage consider as to what was the document put and what was denied by the witness. In a given case, it is possible that the answer of the witness on being confronted with the document may not be unambiguous. It may still be open to the court to consider whether on the basis of the said answer of the witness, the document stands admitted or proved or not and/or what is the effect to be given to the said answer. Thus, the document cannot be returned and has to be necessarily placed on the court file.
10. The next question which arises is that if the document is so placed on the court file, whether it becomes/is to be treated as the document of the party producing the same and is that party entitled to prove the said document notwithstanding having not filed the same earlier, as required by law, or the use of the said document is to be confined only to confront the witness to whom it was put and it cannot be permitted to be proved by that party in its own evidence.
11. The legislative intent behind Order 7 Rule 14(4) and Order 8 Rule 1A(4)and Order 13 Rule 1(3) appears to be to permit an element of surprise, which is very important in the cross examination of witnesses. A litigant may well be of the opinion that if the document on the basis whereof he seeks to demolish the case of the adversary is filed on the court record along with pleadings or before framing of issues, with resultant knowledge to the adversary, the adversary may come prepared with his replies thereto. On the contrary, if permitted to show/produce the document owing to element of surprise, the adversary or witness, may blurt out the truth. Once it is held that a litigant is entitled to such right, in my view it would be too harsh to make the same subject to the condition that the litigant would thereafter be deprived of the right to prove the said documents himself. Thus, if the witness to whom the document is put in cross examination fails to admit the document, the party so putting the document, in its own evidence would be entitled to prove the same. However, the same should not be understood as laying down that such party for the said reason and to prove the said document would be entitled to lead evidence which otherwise it is not entitled to as per scheme of CPC and evidence law. For instance, if the document is shown by the defendant to the plaintiff�s witness and the plaintiff�s witness denies the same, the defendant can prove the document in his own evidence. Conversely, if the plaintiff puts the document to the defendant�s witness and the defendant�s witness denies the same, the plaintiff if entitled to lead rebuttal evidence would in his rebuttal evidence be entitled to prove the same. However, if the plaintiff has no right of rebuttal evidence in a particular case, the plaintiff would not be entitled to another chance to prove the document. In such a case, the plaintiff has to make a choice of either relying upon the surprise element in showing the document or to file the document along with its pleadings and/or before the settlement of issues and to prove the same. Similarly, if the defendant chooses to confront the document to the plaintiff�s witness in rebuttal, merely because the witness denies the document would not entitle the defendant to a chance to prove the document subsequently.
12. I may however put a line of caution over here. It is often found that a party which has otherwise failed to file documents at the appropriate stage, attempts to smuggle in the documents in the evidence of the witness of the adversary by putting the documents to the witness whether relevant to that witness or not. The court should be cautious in this regard. Only those documents with which the witness is concerned and/or expected to know or answer ought to be permitted to be put to the witness in the cross examination. If other documents with which the witness is not concerned are confronted only in an attempt to have the same filed and to thereafter prove the same, the court would be justified in clarifying that the document is taken on record only for the purpose of cross examination and the producing party would not be entitled to otherwise prove the same, having not filed it at the appropriate stage.
13. During the course of the hearing, the counsel for the petitioner relied on
14. The counsel for the respondent has relied on:
(i) Poonam Chawla v. Niranjan Kumar 2009 (109) DRJ 534 which is closest to the case in hand. In that case, the defence of the defendant had been struck off. The defendant in the limited opportunity of cross examination available to him put to the plaintiff certain documents which were denied by the plaintiff. The defendant thereafter applied to the Court for comparison of the handwriting on the said document with the admitted handwriting of the plaintiff. The argument of the counsel for the plaintiff was that allowing the said application would tantamount to permitting the defendant to prove the documents in his defence and which right he had lost. It was held that what a party is prohibited in law from doing directly, it cannot achieve the same by an indirect method. However, this Court while holding so also observed that the handwriting could be compared on documents which form part of the record and accepted the contention of the counsel for the plaintiff that the documents put in cross examination and denied by the plaintiff did not form part of the record. Though, the said observation of another Single Judge of this Court is contrary to the conclusion reached by me above, but I have not deemed it necessary to refer to the matter to a larger bench because the Court in that case was swayed by the defence of the defendants having been struck off.
(ii)
(iii)
(iv)
15. I answer the questions framed above accordingly. This petition succeeds and is allowed. The petitioner/defendant was entitled to put the document in cross examination of the respondent/plaintiff; notwithstanding the denial by the respondent/plaintiff, the petitioner/defendant is entitled to otherwise prove the said document. Since the scope of this petition vide order dated 4th March, 2009 was restricted to the above, the Trial Court to now decide the application of the petitioner/defendant u/s 45 of the Evidence Act in accordance with the legal position enumerated above.
The parties are left to bear their own costs.
