Whether plaintiff or a defendant, while deposing as a witness, can be confronted with documents in cross- examination completely divorced from or foreign to the pleadings made?

 The differentiation between the party to a suit and a witness, as is made clear by our earlier discussion, is not something that 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 Defendant, themselves appearing before the court to enter evidence. As far as the non-production of documents amounting to fraud, it may be true that the non-production of documents on which the parties place reliance, may hinder the progression of the suit- and in a given case, perhaps may amount to fraud- but we do not comment on those possibilities, if any. However, the intentional withholding of a document, in these two situations- is completely different. One is the withholding of a document upon which the case depends, or is essential for the lis to be appropriately decided - and the other is solely for the purpose of effective cross-examination. The two cannot be held to be at the same pedestal, the latter most certainly not amounting to fraud.

{Para 20}

30. A reading of the judgments above would imply that substance is what the courts need to look into, and therefore, in reference to the production of documents, in the considered view of this Court, so long as the document is produced for the limited purpose of effective cross-examination or to jog the memory of the witness at the stand is not completely divorced from or foreign to the pleadings made, the same cannot be said to fly in the face of this established proposition.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8146 of 2023 

Decided On: 14.12.2023

Mohammed Abdul Wahid Vs. Nilofer and Ors.

Hon'ble Judges/Coram:

B.R. Gavai and Sanjay Karol, JJ.

Author: Sanjay Karol, J.

Citation: MANU/SC/1342/2023.

Print Page

Whether litigant seeking condonation of delay due to negligence of his Advocate should make him a party to proceeding?

 This submission, at the first blush, appears very attractive and tends the Court to interfere with the matter. However, after hearing the learned counsel for the applicant, especially when a query was put to the learned counsel in respect of the conduct on the part of the applicant as to whether at any point of time, she on her own, contacted her advocate, the reply was in negative. A litigant who approaches to the Court must be diligent. He or she must take all steps to pursue his or her litigation. It is expected from the litigant that he or she is in contact with the lawyer who is representing his or her cause in the Court of law. A litigant cannot take a spacious plea that once the case is entrusted with an the advocate his or her work is over and the advocate will take care of the matter. An Advocate always discharges his duties on the instructions given to him by his client.

7. It is very easy for a litigant to make allegations against an advocate behind his back. If the applicant wishes to make allegations against the advocate, the applicant should have a courage to join the advocate as a party and in his presence should make allegation against him. Here, the applicant wants to condemn the advocate behind his back. In my view, it is impermissible and unacceptable. Further, no steps are also being taken by the applicant against any advocate under the provision of the Advocates Act.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Application No. 19/2018 in Second Appeal St. No. 22803/2017

Decided On: 18.06.2019

 Kanta  Vs.  Manjulabai and Ors.

Hon'ble Judges/Coram:

V.M. Deshpande, J.

Citation: 2020(1) MHLJ 918

Print Page

Supreme Court: Decree passed after impleading some of legal heirs is binding on legal heirs who were not party to proceeding

 It is true that the cases of the Madras and Orissa High Courts did not relate to the estate of a Muslim debtor. But the rule, as already stated, stated, is one of procedure and not of personal law, and applies to a Muslim debtor's estate as well as to a Hindu debtor's estate. It is true that in the case of a debtor who is sued for recovery of the debt, and if he died after the institution of the suit, there is some order of the court-express or implied - recognising that the person sought to be brought on record are the heirs and legal representatives of the deceased debtor. The court records a conclusion, if not expressly, by implication, that they represent the estate. It was held by this court, as already stated earlier, in a recent judgment in Daya Ram's case that failure to bring the other heirs on record, if there is a bona fide enquiry as to the existence of the heirs does no affect the validity of the decree and the proceeding taken thereunder. In a suit instituted against the heirs of a deceased debtor, it is the creditor who takes upon himself the responsibility to bring certain persons as heirs and legal representatives of the deceased on the record. If he has proceeded bona fide and after due enquiry and under a belief that the persons who are brought on the record are the only legal representatives, it would make no difference in principle that in the former case the heirs have been brought on the record during the pendency of the suit, the creditor having died since the institution of the suit and in the other at the instance of the plaintiff certain persons are impleaded as legal representatives of the deceased person. In either case, where after due enquiry certain persons are impleaded after diligent and bona fide enquiry in the genuine belief that they are the only persons interested in the estate, the whole estate of the deceased will be duly represented by those persons who are brought on the record or impleaded and the decree will be binding upon the entire estate. This rule will of course not apply to cases where there has been fraud or collusion between the creditor and the heir impleaded or where there are other circumstances which indicate that there has not been a fair or real trial, or that the absent heir has a special defense which was not and could not be tried in the earlier proceeding.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 432 of 1963

Decided On: 23.09.1965

N.K. Mohammad Sulaiman Vs. N.C. Mohammad Ismail and Ors.

Hon'ble Judges/Coram:

J.C. Shah, K. Subba Rao, K.N. Wanchoo, S.M. Sikri and Y.V. Chandrachud, JJ.

Citation: AIR. 1966 S.C. 792

Print Page

Whether small cause court has jurisdiction to decide dispute between legal heirs of tenant if landlord is not party to that proceeding?

The private rights or disputes between the legal heirs of the of the deceased tenant, and specifically when the landlord is not party and/or involved, the Small Causes Court has no jurisdiction. The City Civil Court, at least, is not debarred from dealing with the suit so filed. The declaration even if any as prayed, in no way disentitles and/or prevents the landlord to take appropriate steps and/or decision in this regard.

IN THE HIGH COURT OF BOMBAY

Appeal From Order No. 1369 of 2010 with Civil Application Nos. 1690 of 2010 and 355 of 2012

Decided On: 29.11.2013

Mrs. Shahida Sharriff and Ors. Vs. Amanullah and Mrs. Shama Amanullah

Hon'ble Judges/Coram:

Anoop V. Mohta, J.

Citation: 2014(1) MHLJ 365,2014(2) ALLMR 181

Print Page

Whether legal heir not party to proceeding will be bound by decree?

Lastly, reliance was placed upon the observations of the Supreme Court in the matter of N.K. Mohammad Suleman v. N. C. Mohd. Ismail, MANU/SC/0364/1965 : [1966]1SCR937 and the observations are as follows :

"Where on account of bona fide error, the plaintiff seeking relief institutes his suit against a person who is not representing the estate of a deceased person against whom the plaintiff has a claim either at all or even partially in the absence of fraud or collusion or other ground, which taint the decree, a decree passed against the persons impleaded as heirs binds the estate even though the persons interested in the estate are not brought on record."

If the ratio laid down in this matter is to be applied, plaintiffs will be justified in proceeding with the suit by impleading some of the sons of deceased Madre Pillay, even though the said son may not be conducting the tailoring business after death of his father and the said son representing the estate of deceased i.e. tenancy rights in the shop premises; other legal representatives will be bound by the decree in the absence of fraud or collusion.

Hence, since some of the legal heirs of deceased Madre Pillay and Sunderbai are already on record, the suit could not have been disposed of in its totality, as abated. On the contrary, it is necessary to implead remaining heirs which details being strictly within the knowledge of legal heirs are required to be furnished by them.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Civil Rev. Appln. No. 636 of 1999

Decided On: 01.07.2002

 Lilabai Madre Pillay and Ors.Vs. Taheralli Abdul Kayum and Ors.

Hon'ble Judges/Coram:

N.V. Dabholkar, J.

Citation: 2003(1) ALLMR 1046.

Print Page

Whether court witness can be cross examined by any party to proceeding?

The object of Section 311 is to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. If a witness called by the court gives evidence against the complainant, he should be allowed an opportunity to cross-examine. The right to cross-examine a witness who is called by a court arises not under the provisions of Section 311, but under the Evidence Act which gives a party the right to cross-examine a witness who is not his own witness. Since a witness summoned by the court could not be termed a witness of any particular party, the court should give the right of cross- examination to the complainant. These aspects were highlighted in Jamatraj Kewalji Govani v. State of Maharashtra ( AIR 1968 SC 178).

Supreme Court of India

Rama Paswan & Ors vs State Of Jharkhand on 13 April, 2007

Bench: Dr. Arijit Pasayat, D.K. Jain

Print Page

Whether it is mandatory to add adulterer as a party to divorce petition on the ground of adultery?

 I follow the principles laid down in the case of D. Thomas v. Tara, AIR 1978 Mad 415 (FB), where the Court held that a suit for adultery is not maintainable where the adulterer though known to the plaintiff, is not made a party. The dissolution of marriage on the said ground is not at all maintainable. It is true that the said case was dealing with Section 11(i) of the Divorce Act, 1869 and the said section itself provided for impleading the adulterer as a co-respondent. In my opinion, it makes no difference whether the said constraint is provided either by the Act or by the Rules.

Patna High Court

Rabindra Prasad vs Sita Devi on 12 February, 1985

Equivalent citations: AIR 1986 Pat 128

Print Page