Case Note & Summary
This writ petition under Article 227 of the Constitution of India challenged an order dated 28 September 2016 passed by the Civil Judge, Junior Division, Panaji, which allowed the defendant in a civil suit to produce a document during the cross‑examination of the plaintiff. The suit involved the plaintiff, Mr. Vinayak M. Dessai, suing the defendants Durgawadi Co‑operative Housing Society Ltd. and its secretary. The plaintiff opposed the production on the ground that the document had not been filed with the pleadings as required by Order VII Rule 14 and Order VIII Rule 1‑A CPC and that such late production was impermissible. The defendant invoked Order XIII Rule 1(3)(a) CPC, which exempts documents produced for cross‑examination of witnesses from the ordinary filing timelines. The central legal issue was whether the term ‘witnesses’ in that rule includes a party to the suit. The plaintiff argued that a party is distinct from a witness and relied on the Bombay High Court judgment in Purshottam v. Gajanan, which held that a document cannot be reserved for cross‑examination of a party. The defendant countered by asserting that under Sections 3, 118, 120 and 137 of the Indian Evidence Act, 1872, a party is a competent witness whose testimony is evidence, and therefore the exception applies. The defendant also contended that the Purshottam decision was per incuriam for not considering Order XIII Rule 3(a) CPC. After hearing the arguments and examining the provisions and precedents, the court engaged in a detailed analysis but the extracted portion of the judgment concludes before the final operative order. Therefore, the ultimate decision on the petition is not available from the provided text.
Headnote
A) Civil Procedure – Production of Documents – Scope of Order XIII Rule 1(3)(a) CPC – The exemption for documents produced for cross‑examination applies to ‘witnesses’; the question arose whether a party to the suit falls within the term ‘witness’ for this purpose, triggering the need for statutory interpretation (Paras 1-2, 6-7). B) Evidence – Party as Witness – Competency and Testimony – Under Sections 3, 118, 120, and 137 of the Indian Evidence Act, 1872, a party to a civil suit is competent to testify, his statement constitutes evidence, and he can be cross‑examined; this was urged to argue that a party is indeed a witness for the purposes of production of documents (Paras 3-4). C) Civil Procedure – Duty to File Documents – Order VII Rule 14 and Order VIII Rule 1-A CPC – These provisions require the plaintiff and defendant, respectively, to list and produce documents in court with the plaint or written statement; failure to do so requires leave of the court; these duties were contrasted with the exception in Order XIII Rule 1(3)(a) (Paras 2, 6). D) Precedent – Conflicting Judgments – Purshottam v. Gajanan distinguished between a party and a witness, relying on Union of India v. B.D. Sharma, and held that a document cannot be reserved for cross‑examination of a party; the correctness of that view was challenged as per incuriam for ignoring Order XIII Rule 3(a) CPC (Paras 2-3, 8-9). E) Interim Motion – Alternative Prayers – The respondent alternatively requested that if the court found merit in the petitioner’s submission, the matter be referred to a larger bench to reconcile the conflict (Para 4).
Issue of Consideration
Whether a party to a suit can be considered a 'witness' for the purpose of production of documents during cross-examination under Order XIII Rule 1(3)(a) of the Code of Civil Procedure, 1908?
Law Points
- Order XIII Rule 1(3)(a) CPC exempts documents produced for cross-examination of witnesses from pre-filing
- but a party may not be a witness
- Order VII Rule 14(4) and Order VIII Rule 1-A CPC impose duties to file documents with pleadings
- a party’s testimony is evidence under Sections 3
- 118
- 120
- and 137 of the Evidence Act
- the judgment in Purshottam v. Gajanan holding a party is not a witness is argued as per incuriam for not considering Order XIII Rule 3(a) CPC
