IN THE HIGH COURT OF BOMBAY (PANAJI-GOA)
C.R.A. No. 103 of 1984
Decided On: 14.09.1984
Laxmikant Sinal Lotlekar and another
Raghuvir Sinai Lotlekar and another
Hon’ble Judges/Coram:Dr. G.F. Couto, J.
Citation: 1984 Mh. L.J. 938.
1. This revision application gives rise to an interesting question of law as to the interpretation of Order XIII, Rule 2(2), Civil Procedure Code. Can any document be produced during the cross-examination of a witness under the said sub-rule (2) of Rule 2 of Order XIII, or only some class of documents can be introduced, is the question I am called upon to decide.
2. This question arose in a civil suit pending in the Court of the learned Civil Judge, Junior Division, Panaji, while the plaintiff no. 1 was being cross-examined, the learned advocate appearing for the defendants sought to introduce in evidence two letters, one written by Smt. Laxmibai Sinai Lotlekar to the Village Panchayat of Reis Magos and the other by the said Village Panchayat to the first plaintiff, as well as eight house tax receipts issued in favour of the first defendant in the suit. This was opposed on behalf of the plaintiffs, and ultimately, the learned Judge rejected the application of the defendants on the ground that the said documents did not bear the signature of the witness.
3. Mr. A.P. Lawande, learned counsel appearing for the petitioners, submitted that the impugned order passed by the learned Civil Judge, Junior Division, Panaji, is erroneous inasmuch as he has not borne in mind the provision of Order XIII, Rule 2(2) Civil Procedure Code. According to the learned counsel, the petitioners were entitled to confront the plaintiffs with any documents during the course of cross-examination by virtue of the aforesaid provision of law. It was, however, contended by Mr. Peres Cardozo, learned counsel appearing for the respondents, that the provision of sub-rule (2) of Rule 2 of Order XIII is not omnibus and as such, it is not permissible for a party to introduce in evidence all kinds of documents during the course of cross-examination. He contended further that, to hold the contrary, would amount to make nugatory the provisions of Order VII, Rules 14 and 18 and Order VIII, Rule 1. He urged that actually the only documents that a party can introduce during the course of cross-examination are those meant to contradict a witness and permissible under Section 145 of the Evidence Act. The learned counsel further submitted that no other document can be introduced, since the provisions of Orders VII and VIII require the plaintiff and the defendant, respectively, to either produce the documents in their possession or to give a list of documents on which they will rely to prove their cases.
4. Order XIII, Rule 2(1) provides that no documentary evidence in the possession or power of any party, which should have been but has not been produced in accordance with the requirements of Rule 1, shall be received at any subsequent stage of the proceedings, unless good cause is shown to the satisfaction of the Court for the non-production thereof; and the Court receiving any such evidence shall record the reasons for so doing. Sub-rule (2) provides that nothing in sub-rule (1) shall apply to documents (a) produced for the cross-examination of the witnesses of the other party, or (b) handed over to a witness merely to refresh his memory. It would appear from the reading of the aforesaid provisions of law that, under sub-rule (2), it will be permissible to produce for cross-examination of a witness of the other party any kind of document, provided of course that such document is admissible. However, one has to read these provisions of law in the context of the Orders VII and VIII Civil Procedure Code. Order VII deals with a plaint and in Rule 14 provides that where a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented and shall at the same time deliver the document or a copy thereof to be filed with the plaint. Sub-rule (2) provides for a list of other documents and lays down that where the plaintiff relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint. Then, Rule 18 provides that 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, and which 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. Sub-rule (2) provides that nothing in the relevant rule applies to documents produced for cross-examination of the defendant’s witnesses, or in answer to any case set up by the defendant or handed to a witness merely to refresh his memory. In its turn, Order VIII, Rule 1 postulates that the defendant shall, at or before the first hearing or within such time as the Court may permit, present his written statement of defence, and sub-rule (2) lays down that save as otherwise provided in ‘Rule 8A’, where the defendant relies on any document (whether or not in his possession or power) in support of his defence or claim for set-off or counter-claim, he shall enter such documents in a list. Then, sub-rule (5) prescribed that a document which ought to be entered in the list referred to in sub-rule (2), and which is not so entered, shall not, without the leave of the Court, be received in evidence on behalf of the defendant at the hearing of the suit. And sub-rule (6) provides that nothing in sub-rule (5) shall apply to documents produced for the cross-examination of plaintiff’s witnesses or in answer to any case set up by the plaintiff subsequent to the filing of the plaint, or handed over to a witness merely to refresh his memory. Reading together the above provisions of Order VII and VIII with the provisions of Order XIII, it would appear that, in fact, if the provision of sub-rule (2) of Rule 2 of Order XIII is read liberally and as an omnibus provision, then, the provisions of Order VII, Rules 14 and 18(1) and Order VIII, Rule 1, sub-rules (2) and (5) will become nugatory. Now, if this would be the result of such a liberal interpretation of Order XIII, Rule 2(2), it is obvious that the same construction is erroneous, for no provision of law should be interpreted in a manner that other provisions will be nullified. In fact, provisions of the law are not superfluous, having therefore to be construed harmoniously and in a manner that each of them has a meaning and a significance.
5. I have thus no doubt whatsoever in holding that the provision of Order XIII, Rule 2(2) Civil Procedure Code is to be read in a restrictive manner and that it applies only to some classes of documents a party intends to produce by way of cross-examination, and not to all the documents though otherwise admissible in evidence. It is indeed clear from the scheme of the Code that the legislature had intended that the plaintiff and the defendant, respectively, should produce the documents on which they rely upon to prove their cases when such documents are in their possession, and in any event, they should file a list of documents on which they rely in order to prove their own case. These provisions of law are manifestly meant, on one hand, to prevent suspicious documents to be introduced in evidence by way of cross-examination, or on the other, to prevent manufacture or fabrication of false documents. They are also meant to give a fair opportunity to a party to meet the case of his adversary by not being taken by surprise. In my opinion, the true and correct interpretation of Order XIII, Rule 2(2) Civil Procedure Code is that the only documents which can be produced in cross-examination are those which are outside the case of each of the parties and those meant to refresh the witness’s memory. This view appears to be correct, considering the language of Order VII, Rule 18(2) and Order VIII, Rule 1(6) Civil Procedure Code. I say so because in sub-rule (2) of Rule 18 of Order VIL, it is provided that sub-rule (1) does not apply to documents produced for cross-examination of the defendant’s witnesses, or in answer to any case set up by the defendant or handed to a witness merely to refresh his memory. And Order VIII, Rule 1(6) Civil Procedure Code provides that the provision of sub-rule (5) shall not apply to documents produced for the cross-examination of plaintiffs witnesses or in answer to any case set up by the plaintiff subsequent to the filing of the plaint, or handed over to a witness merely to refresh his memory. Now, reading together the aforesaid Rule 18(2) and Rule 1(6) of Orders VII and VIII, respectively, it would appear that the expression ‘subsequent to the filing of the plaint’, occurring in sub-rule (6) of Rule 1 of Order VIII, gives the key to the problem and indicates that what the legislature meant is that, if a plaintiff advances something new after the filing of the plaint, or if a defendant does so after the filing of the written statement, his adversary in the suit will be entitled to confront him with a document concerning the new case advanced by him. Also naturally, in view of the clear language of Order XIII, Rule 2(2), documents can be produced for the purpose of refreshing the memory. This part of sub-rule (2) is, however, to be read in the context of the provisions of Section 145 to Section 161 of the Evidence Act.
6. Sub-rule (2) of Rule 2 of Order XIII was introduced in the Civil Procedure Code by the Amendment Act of 1976. It will be relevant, therefore, to advert to its Statement of Objects and Reasons. It is stated therein that Rule 2 provides that documents which should have been produced at an earlier stage shall not be received at any subsequent stage of the proceedings, unless the Court is satisfied that there is good cause for non-production of such documents at earlier stage and that the rule was being amended to clarify that the documents which are produced for cross-examination shall not fall within the ambit of the rule. It appears, therefore, clear that the mischief sought to be removed by way of the amendment is that documents covered by Rule 2 should not find their way in the evidence by way of cross-examination, circumventing thereby the said provision of law. Thus, if this was the intention for amending Rule 2 and for introducing sub-rule (2), the view taken by me appears to be correct. I, therefore, hold that the documents which can be introduced in the evidence by way of cross-examination are those which are not meant to prove the original case of a plaintiff or of a defendant as set out in the plaint or written statement, and further those produced for the sole purpose of refreshing the memory of the witnesses.
7. Now, in the light of the above discussion, it only remains to determine whether the documents sought to be introduced by the petitioners in the evidence during the cross-examination of the respondent no. 1 are or are not falling in the aforesaid category. Mr. Lawande submitted that he does not press at this stage for the introduction in the evidence of the letters mentioned above in the plaintiffs cross-examination, but he reserves his right to introduce such documents with the leave of the trial Court. He thus submitted that he restricts his case to the introduction in the evidence of the house tax receipts only, since the said receipts are public documents and manifestly cannot be said to be manipulated or fabricated. Mr. Peres Cardozo, however, contended that though the house tax receipts are public documents, the fact remains that the petitioners are not entitled to introduce the said documents during the cross-examination of the plaintiff no. 1. Petitioners may seek and will definitely obtain the leave of the Court to introduce them in due course of the trial, he further submitted.
8. It is common ground that the subject matter of the suit is a house and that the ownership thereof is disputed by both the parties, both plaintiffs and defendants claiming that it belongs to them. This being the case, it is manifest and clear that the house tax receipts are documents meant to prove the ownership of the house by the defendants/petitioners herein. In other words, the said documents are sought to be introduced in evidence to prove the original case of the defendants/petitioners herein, as set out in the written statement. Hence, and in the view taken by me as regards Order XIII, Rule 2(2) Civil Procedure Code. It was not permissible for the defendants/petitioners herein to introduce the said documents in the course of the cross-examination of the plaintiff no. 1. Thus, by disallowing the introduction of the said documents in evidence during the course of the cross-examination of the plaintiff no. 1, the learned Civil Judge, Junior Division, Panaji, has not committed any error in the exercise of the jurisdiction vested in him. Hence, the interference of this Court in the exercise of its jurisdiction under Section 115 Civil Procedure Code is not justified.
9. In the result, this revision application fails and is, accordingly, dismissed with costs.