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8802 2021 7 1503 49073 Judgement 14-Dec-2023
8802 2021 7 1503 49073 Judgement 14-Dec-2023
Versus
JUDGMENT
SANJAY KAROL, J.
Leave Granted.
Rules:
cases; and
orders.
The parties are required to help the court to further the overriding
objective.
THE CONFLICT
Purushottam v. Gajanan4.
1 1957 2 QB 55
2 WP No. 7717/2019 & 6931/2019; (Hereinafter, the Impugned Judgment)
3 2017 SCCOnLine Bom 8515
4 2012 SCCOnLine Bom 1176
observed:
observed :
Couper Paper Mills Co. Ltd. v. M/s Mangaldas and Sons 5, the
was observed that merely because Order XVI Rule 21 states that
the Indian Evidence Act, 1872, it is observed that the phrase 'by
the party who calls him' clearly indicates that under this Section
6 Hereinafter, C.P.C
different.
Order VII Rule 14 Sub-Rule (4), Order VIII Rule 1-A(4)(a) and
of the Code. Therefore, both decisions lay down the correct view
in law.
cause?
14; Order VIII Rule 1-A; Order XIII Rule 1 etc, enjoin the party
opposite party?
VII Rule 14 (4), Order VI Rule 21, Order VIII Rule 1(A) (4) (a)
exception.
160.
made to Order VII Rule 14 (4), Order 8 Rule 1(A), (4) (a) and
surprise.
Neither the phrase ‘party to the suit’ nor ‘witness’ is defined under
the CPC or any other statute on the books. However on this issue,
Lexicon is as under:-
"The term 'witness'*, in its strict legal sense, means one who gives
or jury.”
11. The High Court in its considered view stated that a party
13. This understanding, in our view, implies that the law places
testifying to their own cause are not witnesses despite being in the
witnesses. It reads:-
for the consideration of the court. The Code itself speaks to the
of.
to the amendment to the Code in the year 1976, this Section was
We may also refer to Order XVIII Rule 3A which states that when
“
….
(3) “To be a witness” is not equivalent to “furnishing evidence”
in its widest significance; that is to say, as including not
merely making of oral or written statements but also
production of documents or giving materials which may be
relevant at a trial to determine the guilt or innocence of the
accused.
On this we may only highlight what the High Court had to observe:
witness box. In our considered view, this distinction does not rest
Section 137
Section 138
Section 139
Section 154
Section 155
16. The thrust of the reliance was that this Act by the use of the
phrase ‘by the parties who calls him' in the extracted provision,
may also be observed that nowhere in the Evidence Act has the
and 139, in our considered view, does not favour the differences
also the witness called by such party for the purposes of entering
14(4), Order VIII Rule 1-A(4)(a) and Order XIII Rule 1(3), the High
playing field in the litigation, but also undercut the said provisions
Rule 1-A (4) and Order XIII Rule 1(3) applies only to witnesses
Order VII
[14. Production of document on which plaintiff sues or
relies.—
(1) Where a plaintiff sues upon a document or relies upon
document in his possession or power in support of his claim,
he shall enter such documents in a list, and shall produce it
in Court when the plaint is presented by him and shall, at
the same time deliver the document and a copy thereof, to be
filed with the plaint.
(2) Where any such document is not in the possession or
power of the plaintiff, he shall, wherever possible, state in
whose possession or power it is.
[(3) A document which ought to be produced in Court by the
plaintiff when the plaint is presented, or to be entered in the
list to be added or annexed to the plaint but is not produced
or entered accordingly, shall not, without the leave of the
Court, be received in evidence on his behalf at the hearing of
the suit.]
(4) Nothing in this rule shall apply to document produced for
the cross-examination of the plaintiffs witnesses, or handed
over to a witness merely to refresh his memory.]
Order VIII
Order XIII
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
the suit- and in a given case, perhaps may amount to fraud- but
suit is to enter the witness box, and what the procedure may be,
23. We notice that the Madras High Court in Miss T.M. Mohana
can be availed only for a witness of a party and not the party
witnesses" would not only be witnesses for the plaintiff, but also
recognized concept in civil suits as well 12) for one of the differences
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
negated.
observed that it was not open for the trial court to allow the
latter saying that a party and a witness can be equated for the
India Couper Paper Mills Co. Ltd. (supra) which says that it is
may refer to Ram Sarup Gupta v. Bishun Narain Inter College 14,
the pleadings made, the same cannot be said to fly in the face of
which they seek to place reliance, in defense of his claim for set-
or to jog the memory of a witness) and Order XIII Rule 1(3) (This
witness.
a party to the suit and a witness as the case may be, at the stage
33. The questions raised in the instant lis are answered in the
35. The original petition stands restored to the file of the High
hereinabove discussed.
…..……………………..J.
(B. R. GAVAI)
…………………………J.
(SANJAY KAROL)
New Delhi
December 14, 2023