Delhi HC: There Can't Be Piecemeal Disclosure Of Material On Which Prosecution Seeks To Base Its Case

It is a cardinal principle of criminal jurisprudence that the accused is to be supplied with all documents that the prosecution seeks to rely upon, before the commencement of the trial. There cannot be piecemeal disclosure of material on which the prosecution seeks to base its case. The requirement to disclose the entire incriminating material prior to framing of charge stems from the right of the accused of fair opportunity to meet the case of the prosecution and to effectively put forth the defence. {Para 39}

40. To elaborate, such requirement is imperative to afford a meaningful opportunity to the accused to defend at the following stages - firstly, prior to commencement of trial to enable the accused to contest the framing of charge and seek discharge. Secondly, in case the accused fails to seek discharge, he should have fair opportunity to cross-examine prosecution witnesses and put his defence to them. Thirdly, to enter on his defence and adduce any evidence in support thereof.

41. Thus, requirement of such full disclosure is an extremely valuable right and an essential feature of the right to a fair trial as it enables the accused to prepare for the trial before its commencement. 

 IN THE HIGH COURT OF DELHI AT NEW DELHI

 CRL.M.C. 4107/2023 & CRL.M.A. 5116/2024

CENTRAL BUREAU OF INVESTIGTATION  Vs R. VASUDEVAN & ORS. 

CORAM: HON'BLE MR. JUSTICE VIKAS MAHAJAN

Dated:  22.05.2024.

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What are provisions regarding production of documents in CPC?

 O 7 R 14 of CPC.

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 plaintiff's witnesses, or, handed over to a witness merely to refresh his memory.]

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Whether a party can directly produce documents at the stage of cross-examination of a witness without leave of court?

 As to question No. 2:

 35. In fact having answered question No. 1, in the negative, that a party cannot be equated with a ‘witness’, the answer to question No. 2, naturally follows that a plain reading of the language of Order VII, Rule 14 sub-rule 4 and Order VIII, Rule 1-A sub-rule (4) of Civil Procedure Code and specifically the use of the words ‘defendants witness’ and the ‘plaintiffs witness’, would mean not the defendant(s) or the plaintiff(s) but only the witnesses who enter the witnesses box, in support of the case set up by either party to the suit and not otherwise. Therefore no leave of the Court would be required to confront the witness with a document during his cross-examination, as the element of surprise, would be lost, if any such permission was required to be obtained.

Civil Procedure Code, O. 7, R. 14(4), O. 8, R. 1-A and O. 13, R. 1(3) — Under provisions of Order 7, Rule 14(4), Order 8, Rule 1-A(4) and Order 13, Rule 3 of Code documents can be directly produced at stage of cross-examination of a witness who is not a party to suit, to confront witness for refreshing his memory without seeking prior leave of Court. (2012) 6 Mah LJ 648, (2018) 2 Mah LJ 348 held laying down good law. (1994) 1 SCC 1, Rel., 1984 Madras 14, (2003) 3 Mah LJ 327, (2004) 4 Mah LJ 992, (1996) 1 Mah LJ 961 and (2011) 3 Mah LJ 564, Ref.

(Paras 35 to 40)

 In the High Court of Bombay

(Nagpur)

(Before Sunil B. Shukre and Avinash G. Gharote, JJ.)

Mohammed Abdul Wahid  Vs Nilofer Wd/O Dr. Mohammad Abdul Salim 

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Whether A party to a suit (plaintiff/defendant) can be equated with a witness?

The Civil Procedure Code uses the expressions ‘parties’ and ‘witness’, in contradistinction to each other. In an adversarial litigation, the conduct of which is governed by the rules of procedure as laid down in the Civil Procedure Code a party to a suit, is clearly a separate and distinct person from a witness. The role of a party, be it the plaintiff or defendant, is solely for himself as a party to the suit, in which either relief is sought or the grant of it is opposed, for the party. The role of a ‘witness’, for a ‘party’, is always in the nature of supporting or proving a plea, which is being set up by the party, be it for giving evidence of any incidence, proving a document, giving expert opinion or otherwise. It is always in aid of a plea set up by a party, in the plaint or the written statement. The ‘witness’, can never claim anything from the Court for himself, as it is impermissible for a ‘witness’, to travel beyond the role of supporting or proving the pleas as raised by the plaintiff(s) or the defendant(s) who have called or caused the ‘witness’, to be summoned, through the process of the Court. A party to a suit (plaintiff/defendant) cannot be equated with a witness. The provisions of Order 7, Rule 14(4), Order 8, Rule 1-A(4) which includes Rule 1-A(4)(a) and Order 13, Rule 1(3) which includes Rule 1(3)(a) of Civil Procedure Code are not applicable to a party, who enters the witness box to tender evidence in his own cause. The provisions are applicable to a witness alone. Since a party cannot be equated with a witness in the matter of applying the provisions of Order 7, Rule 14(4); Order 8, Rule 1-A(4) and Order 13, Rule 3 of Civil Procedure Code.

Civil Procedure Code, O. 7, R. 14(4), O. 8, R. 1-A and O. 13, R. 1(3) — Party to a suit cannot be equated with a witness — Provisions of Order 7, Rule 14(4), Order 8, Rule 1-A and Order 13, Rule 1(3) are applicable only to a witness and not to a party to suit who enters witness box to tender evidence in his own cause.

 In the High Court of Bombay

(Nagpur)

(Before Sunil B. Shukre and Avinash G. Gharote, JJ.)

Mohammed Abdul Wahid  Vs Nilofer Wd/O Dr. Mohammad Abdul Salim 

W.P. Nos. 7717 and 6931 of 2019

Decided on February 9, 2021

Citation: 2021 SCC OnLine Bom 170 : (2021) 3 Mah LJ 626 : (2021) 4 AIR Bom R 689

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Whether court should direct discovery and production of entire sale deed in defamation suit?

The Coordinate Bench of this court in the case of DSIIDC v. Shiv Kumar, 2013 SCC Online Delhi 3773, has held that before making an order under the provisions of Order XI, the following principles have to be considered by the Court:

(i) The documents sought to be discovered and produced have to be relevant to the matter in controversy viz. matters in question.

(ii) The documents have to be in the possession and power of the person against whom discovery and production is sought.

(iii) Discovery and production of the documents which are sought for are necessary at that stage of the suit.

(iv) The discovery and production is necessary for fairly disposing of the suit or for saving costs.

(v) The discovery and production may be general or limited to certain classes of documents as the Court in its discretion deems fit and the production will only be ordered if the Court considers it just.

13. The aforesaid principles clearly apply to the facts of this case as noted above. Further the order directing the production of document does not by itself effect any vital and valuable rights of the parties and does not decide the matter. In so far as the judgment relied upon by Mr. Sindhwani in the case of Vipul Gupta (Supra) is concerned, this court has held (1) The court has to be satisfied that the documents in question are relevant for proper adjudication of the matter involved in the suit; (2) if a party pleads ‘truth’ as a defence, then the party has to show that when the statement was made, it was on the basis of facts and circumstances in the knowledge of party, by which party was aware that the statement which the party was making was true or there was a reasonable belief based on material and information then available, that whatever being stated was true.

14. There cannot be any dispute on the propositions of law laid down in the said judgment. But in this case, the plaintiff relied upon / produced only a part of the Sale Deed and not the complete one with the site plan for the reasons best known. The Sale Deed along with site plan having been executed in the year 2005 was in existence when the interview / statement was given in the year 2018 and it is also the case of the defendant No.2 in the application for discovery and production of documents that on a perusal of the Sale Deed, more particularly Schedules annexed thereto, it is revealed that the property is measuring 4.54 acres. It is also his case that the plaintiff grabbed, much more area than 4.54 acres, of the Gaon Sabha, Village Azadpur. Therefore, defendant No.2 is imputing his knowledge to the Sale Deed and schedules annexed thereto which includes the site plan of the land. 

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on: May 26, 2020

 CS(OS) 245/2018, I.As. 9856/2018,

M/S NEGOLICE INDIA LIMITED Vs  PRABHAT BHASKAR / PRABHATBHASKAR.COM

CORAM:

HON'BLE MR. JUSTICE V. KAMESWAR RAO

O.A. 114/2018

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Whether court can refuse to order production of document by applying test of comparative hardship between parties?

The Court, therefore, is clearly empowered and it shall be lawful for it to order the production, by any party to the suit, such documents in his possession or power relate to any matter in question in the suit provided the Court shall think right that the production of the documents are necessary to decide the matter in question. The Court also has been given power to deal with the documents when produced in such manner as shall appear just. Therefore, the power to order production of documents is coupled with discretion to examine the expediency, justness and the relevancy of the documents to the matter in question. These are relevant considerations which the Court shall have to advert to and weigh before deciding to summoning the documents in possession of the party to the election petition.

8. Without applying any of these tests, the court below allowed the respondent's application holding that refusal of application would otherwise cause a very valuable piece of evidence in favour of the respondent to be shut out. The objection of the petitioner that passport is in his current use and parting of it would result in putting an end to his stay in Abu Dhabi was not accepted by the court below as if it did not merit any consideration under law. It is a common knowledge that a resident will not be permitted to stay in a foreign country unless he holds original passport in his possession since its production could be insisted by the authorities whenever necessary. Therefore the order of the court for production of the original for comparison by a handwriting expert would only deprive petitioner's right to stay abroad. However, the position would have been different had the direction of the court been limited to production of the passport solely for the inspection of the respondent.

9. The court below while taking care of the respondent's concern and interest in the suit, however, failed to consider the hardship exposed to the petitioner while ordering production of original passport. The extent or degree of comparative hardship likely to be suffered by the petitioner in this respect did not engage the attention of the court below. The test of comparative hardship between parties is also one of the tests to be applied by the courts in deserving cases of this nature when parties to suit apply for production of document invoking Order XI Rule 14 of the Code.

10. Order XI Rule 14 of the Code does not attach to a party an absolute right to insist for production of a document in the possession of the adverse party in support of proof of his case. The right of the applicant is liable to be determined by the court in the light of the test of expediency, justness and relevancy as held by the Hon'ble Supreme Court in the aforesaid decision. Any direction to produce the original passport of the petitioner in court affecting his right to stay abroad will only place him comparably in great hardship than the respondent who relies on the document and seeks to prove his case. Applying the test in Sasanagouda's case, I am satisfied that the impugned order dated 5.10.2017 does not accord with the interest of expediency or justness and therefore it is liable to be set aside as being illegal.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP (C) No. 492 of 2018

Decided On: 05.02.2019

Thundiyil Abdurahiman  Vs.  Asharaf Kalapeedikayil

Hon'ble Judges/Coram:

T.V. Anilkumar, J.

Citation: AIR 2020 (NOC) 208 Kerala

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Whether it is necessary for a person to remain present before if he is directed to produce any document?

(b) Production from a Third Party:

30. Order 16 deals with the summoning and attendance of witnesses. Rule 6 concerns summons to produce a document. Any person may be summoned to produce a document, without being summoned to give evidence. And any person summoned merely to produce a document shall be deemed to have complied with the summons if he gets the document produced instead of his attending personally to produce it.

31. Rule 15 of Order 16 deals with the duty of persons summoned to give evidence or produce a document. The person summoned to give evidence must appear before the court "for that purpose." But if he is summoned to produce a document, he may either "attend to produce it, or cause it to be produced, at such time and place." Therefore, a witness who is asked to produce a document need not even attend the court. It will suffice if he ensures the production of the document before the court by some other means or through someone else.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 5016 and 5017 of 2018

Decided On: 28.06.2019

 J.M. Constructions Vs.  Shamrock Impex Pvt. Ltd. 

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Whether court can allow production of document in absence of pleading in respect of that document?

 Indisputably, the assertion regarding transaction covered by sale deed dated 06.01.2006, executed by Vimal Kumar, was not on record of the Trial Court. In absence of any pleadings or existence of facts on the record of the Trial Court, no permission to produce additional documents could be granted. The basic consideration, while allowing the application under Order 8, Rule 1A(3) of the Code is; as to whether the document in question is required for adjudication of the dispute between the parties and whether the defendant was precluded from producing the same along with the written statement, as mandated by Rule 1A of Order VIII of the Code. In absence of any such pleading, the relevance of the document dated 06.01.2006 itself becomes a question mark. The respondent's application did not contain any explanation for inordinate delay in seeking leave to produce the document, which had been executed on 06.01.2006. The application was clearly proscribed or prohibited by the provisions contained in Order VIII, Rule 1A of the Code. The Trial Court has, therefore, clearly erred in arriving at a finding that the sale deed dated 06.01.2006 is relevant.

IN THE HIGH COURT OF RAJASTHAN

S.B. Civil Writ Petition No. 16351 of 2017

Decided On: 30.07.2019

Tulsi Ram Jagannath Agarwal  Vs. Parmeshwar Lal and Ors.

Hon'ble Judges/Coram:

Dinesh Mehta, J.

Citation: AIR 2019 Raj 170

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Whether tenant can be permitted to produce documents at appellate stage if document is between landlord and third party?

 It cannot be denied that the documents sought to be produced by the tenants are material and if substantiated, would have a material effect on the case of the landlords of their bona fide need of the suit premises. If, in fact, the landlord has entered into negotiations with M/s. Godrej Boyce Co. Ltd. for selling or use by them of the property, the need cannot be said to be genuine. Similarly, a change in the construction plan may show that the alleged need of the landlord for the construction may not be genuine. The third document proposes to demolish the case of availability of the funds for construction with the landlord. Two of the documents came into existence after the passing of the decree by the trial court. Similarly, the correspondence entered into by the landlord with a third party could not have been within the knowledge of the tenant and therefore, the tenants' statement that the documents could not have been produced before the trial court, in spite of the exercise of due diligence, was highly probable. In such circumstances, the High Court was not justified in interfering with the discretion exercised by the first appellate court permitting additional evidence.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1210 of 2005 

Decided On: 14.02.2005

ADIL Jamshed Frenchman Vs  Sardar Dastur Schools Trust and Ors.

Hon'ble Judges/Coram:

R.C. Lahoti, C.J., G.P. Mathur and P.P. Naolekar, JJ.

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How to decide application of accused for production of documents and examination of witnesses?

 Clearly the documents production of which is sought for by the petitioner, are relevant for the just decision of the case. Petitioner had earlier filed an application seeking production of these documents as well as summoning of the concerned witnesses at the stage when prosecution evidence was being led. Said application was permitted to be withdrawn on 04.07.2018, with liberty to summon the relevant record and witnesses at the stage of defence evidence. Once liberty was granted to the petitioner to summon the relevant record and the witnesses at the stage of defence evidence, subject application could

not have been rejected on the ground of delay or having been moved at the belated stage.

25. The reasoning given by the Trial Court that specific particulars or dates of meetings have not been given is ex-facie unsubstantiated. The list of documents, as extracted hereinabove, clearly shows that the petitioner has given requisite particulars so as to identify the relevant documents. It may further be noticed that subject application was filed along with an application under Section 315 Cr.P.C filed by the petitioner as well as the other co-accused. Applications under Section 315 Cr.P.C. of the accused were allowed and accused were permitted to examine themselves as witnesses.

26. Under Section 243 Cr.P.C. it is obligatory on the part of the Trial Court to issue process when the accused seeks summoning of any witness or production of any document in his defence. The only ground on which such an application can be refused is if the same was vexatious, delayed or would defeat the ends of justice.

27. In the instant case, no such findings have been returned by the Trial Court. On the contrary, the Trial Court has erred in not noticing that the petitioner had moved an application even at the stage when prosecution evidence was being led and was permitted to withdraw that application with liberty to move an appropriate application at the stage of defence evidence and that is exactly what the petitioner has done.

28. Further, the Trial Court has clearly erred in holding that it is within the discretion of the court, under Section 243 Cr.P.C. to decline such an application. On the contrary, as per section 243 Cr.P.C., it is obligatory on the part of the Trial Court to issue process, unless, it for the reasons to be recorded, holds that the application is vexatious, delayed or defeats the ends of justice.

29. Further reasoning given by the Trial Court, that the petitioner is seeking re-summoning of the witnesses, who have already been examined, is also not correct. Petitioner has not sought summoning of the witnesses, who have already been examined as prosecution witnesses for re-examination/cross-examination. Petitioner has merely sought production of the relevant record of the association from the custodian thereof. Admittedly, the record would come from an undisputed source. Petitioner has not sought re-summoning of any witness already examined, by name but has only sought production of the documents from the custodian thereof. Once the documents are produced, it would be open to the petitioner to prove the same in accordance with the Evidence Act.

30. Further reasoning given by the Trial Court, that the petitioner could have obtained copies of the documents under the Right to Information Act and then cross-examined the witnesses on the said documents, is also erroneous. Even if a person were to obtain copies of the documents under the Right to Information Act, said copies would not become primary evidence in terms of the Evidence Act and

a party would still need to summon the original record from the custodian thereof.

31. Since it is admittedly not the case of the respondent that the documents are not relevant or have no bearing on the just decision of the case, I am of the considered opinion that the Trial Court in the facts, as noticed hereinabove, has clearly erred in dismissing the application of the petitioner filed under Section 91 read with Section 311 Cr.P.C.

32. In view of the above, impugned order dated 03.12.2018 is set aside. Consequently, the application, filed by the petitioner, under Section 91 read with Section 311 Cr.P.C. dated 14.11.2018 is allowed,

 IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on: 01st July, 2019

 CRL.REV.P. 1169/2018

SHYAM MANOHAR SAXENA Vs  CENTRAL BUREAU OF INVESTIGATION & ORS

CORAM:-

HON’BLE MR JUSTICE SANJEEV SACHDEVA

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Precaution to be taken by magistrate prior to issuance of search warrant

8. A brief reference to Section 93 (1) would be profitable to

appreciate the contentions:

“Section 93 - When search-warrant may be issued

(1) (a) Where any Court has reason to believe that a

person to whom a summons or order under section 91

or a requisition under sub-section (1) of section 92 has

been, or might be, addressed, will not or would not

produce the document or thing as required by such

summons or requisition, or

(b) where such document or thing is not known to the

Court to be in the possession of any person, or

(c) where the Court considers that the purposes of any

inquiry, trial or other proceeding under this Code will be

served by a general search or inspection, it may issue a

search-warrant; and the person to whom such warrant is

directed, may search or inspect in accordance therewith

and the provisions hereinafter contained.

(2) xxxx xxxx

(3) xxxx xxxx”

9. As is evident from the wording of the section, it arms the

jurisdictional Magistrate with very wide powers. Issuance of a search

warrant is a very drastic step with serious consequences and it cannot

be gainsaid that such drastic powers should not be exercised without

fully appreciating the gravity of the step. It is for that reason, the

words "reason to believe" is incorporated in the said section. This

function being judicial, it necessarily follows that the Magistrate has

to apply his mind judicially.

10. It is evident from the provision that clause (a) of sub-

Section (1) requires, as a condition precedent, to the issue of a search

warrant, that the court must have reason to believe that the person,

against whom the search warrant is issued, is likely not to produce

the document or thing in his possession as required by a summons or

order under Section 91 or a requisition under Section 92(1) of the

Code, served on him, or that he is not likely to produce it, should such

summons or order or requisition be served. No such situation had

arisen in the instant case. It does not appear from the order that the

petitioners were called upon to produce the document and they had

refused. Section 93(1)(b) comprehends a situation where a search

warrant may be issued to procure a document or thing not known to

the court to be in the possession of any person. In other words, a

general search warrant may be issued to procure the document or

thing and it can be recovered from any person who may be ultimately

found in possession of it if it was not known to the court that the

person from whose possession it was found, was in possession of it.

The said provision has no application as it is evident from the

application itself that the document was in the possession of the

relevant office bearer of the Tennis Club. Under clause (c), a search

warrant can be issued where the court considers that the purposes of

any enquiry, trial or other proceeding under this Code will be served

by a general search or inspection. A Magistrate must, under this

provision, apply her mind to the question whether the purposes of any

enquiry, trial or other proceeding under the Code will be served by a

general search, and, unless there are materials before her, connecting

the person against whom the warrant is applied for with the offences

alleged, upon which it can come to an independent decision on the

point, it has no power to issue a search warrant. I have no doubt in my

mind that none of the situations contemplated in clauses (a) to (c) of

Section 93(1) had arisen in the instant case.

11. There is yet another aspect of the matter. When the

law requires the sanction of Magistrate before the issue of a search

warrant, it means that the Magistrate should apply its mind to the

facts. This fact should be discernible from the order passed. It can be

argued that the provision does not contemplate recording of detailed

reasons prior to the issuance of an order in view of the urgency of the

situation. However, in a case of instant nature, wherein allegations

are levelled against the officer bearers of a club for wrongly

inducting a member against the provisions of the bye-laws, the

learned Magistrate ought to have applied her mind and should have

formed an opinion upon the materials placed before her. The

“reasons to believe” which weighed in the mind of the Court to take

such a drastic step should have been reflected in the order.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

 MR. JUSTICE RAJA VIJAYARAGHAVAN V

Crl.MC.No. 8672 of 2018

 K.P VIJAYA MOHAN, Vs  N. JAYA KUMAR,

Dated: 15TH DAY OF MARCH 2019 

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Whether S 164 of Evidence Act is applicable to criminal proceeding?

 However his failure to do so, is, it appears to the learned Magistrate, a ground to deprive him of the right to use these documents as material for his defence. The learned Magistrate based this view on the provisions of Section 164, Evidence Act, which provides that when a party refuses to produce a document which he has had notice to produce he cannot afterwards use the document as evidence without the consent of the other party or the order of the Court. Accordingly, when in cross-examination the complainant was shown these books he refused to have anything to do with them or to answer any question with regard to them and in his refusal it is clear that he was supported by the learned Magistrate. In my opinion the learned Magistrate misunderstood the meaning and intention of Section 164. Speaking for myself, I am by no means convinced that Section 164 applies to criminals proceedings. Section 164 does not contemplate the production of documents for inspection. What it contemplates is that one party should call upon another in Court to produce a document of which, the first party has given the other notice to produce. It does not give him any right at any stage of the case to call upon his opponent to produce the document and use it or not as he sees fit. I do not myself see any indication in the section that the complainant can call for a document in this sense. We think that the learned Magistrate was wrong in not permitting the pleader for the defence to put these documents to the complainant and cross-examine him on them. The fact that the accused adopted an unreasonable attitude with regard to their production may be material when the time comes to consider as to what weight to be attached to them. We think that the learned Magistrate-was wrong in not permitting the documents upon which the accused claims to base the main part of his defence to be put to this particular witness for the prosecution. This seems to us to be a sufficient reason for setting aside the conviction. 

IN THE HIGH COURT OF CALCUTTA

Decided On: 13.07.1932

Sham Das Kapur  Vs.  Emperor

Hon'ble Judges/Coram:

H.R. Panckridge and M.C. Ghose, JJ.

Citation : AIR 1933 Cal 65

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Whether party can be permitted to file documents which were not filed along with written statement?

Order 8 Rule 1A(3) of the CPC provides that the documents, which have not been produced along with the written statement, cannot be produced to the court later on without the leave of the court. Thus, if a document is to be produced by a defendant, the same is to be produced with the written statement. Subsequent production of document can be done only if the court is satisfied with the grounds explained for non-production of the documents at the time of filing of the written statement.

In the High Court of Patna

(Before Ashwani Kumar Singh, J.)

Dewanti Devi and Others v.  Radheshyam Tiwary 

Civil Miscellaneous Jurisdiction No. 1497 of 2016

Decided on January 4, 2019

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Whether husband can be permitted to produce CD and transcript in cross examination of wife for confronting her?

 This is the most necessary incident of the exercise of cross-examination. The very purpose of the cross-examination will be frustrated, if the documents with which a witness of the other side of the Plaintiff_ s witness is to be confronted is shown to or inspected by that party earlier. The Court is concerned with the determination of the truth. Truth has to emerge from the evidence on record. The skill of the cross-examiner brings forth the hitherto unknown truth on record. This takes place in a cross-examination. It would be a farce to notify the party who is being cross-examined of the questions that may be asked by the cross-examiner. Consequently, in the cross-examination of a party any document can be produced and the witness under cross-examination can be confronted therewith. Similarly any document can be produced to that end for the witness to refresh his or her memory.

 The dispute between the parties is not ambiguous to either of them. The ambit of evidence has, therefore, to be set out. The Defendant is entitled to rely upon the recorded conversation on the CD by the fact of production of the CD in the cross-examination of the Plaintiff. If the Plaintiff admits the contents, it would be read in evidence. If the Plaintiff disputes the contents, the Defendant would have to prove, by direct or circumstantial evidence in his own examination-in-chief, the accuracy of the recorded conversation. For that proof, the Defendant may produce the original electronic record itself. The Defendant may seek to play it before the Court to have the voice of the Plaintiff, hitherto disputed, identified in Court. The Defendant may himself identify the voice and get it produced in evidence and apply for playing it on record for the Court to appreciate the identified document being the recorded conversation on the CD. The Defendant may produce any other circumstantial evidence to prove the authenticity of the CD as he would for any other documentary evidence. The Defendant would also be entitled, but as a last resort, to have the forensic evidence to identify the voice of the Plaintiff by having the voice of the Plaintiff recorded as an admitted document and compared by an expert in the forensic laboratory to verify that voice with the voice on the taped conversation on the C Ds.

29. It is argued on behalf of the Defendant that the Defendant has taken out the application well in advance for the forensic report to be obtained. The application is, of course, not premature. However, the application involves the requirement of recording of Plaintiff_ s voice and then comparing it with the already recorded voice on the C Ds much as the verification of the admitted and disputed signatures of the parties would be. However, the Plaintiff may choose to admit the contents of the CD or whatever is stated in paragraph of the Written Statement, the entire exercise sought by the Defendant would be avoided since admitted facts need not be proved. Since much would depend upon the Plaintiff s own evidence, the Plaintiff need not be taken through the exercise of having her voice recorded and then verified by the forensic expert at present. However, after the Plaintiff s cross-examination is completed and the Defendant considers production of CD as his own document and relies upon it in the affidavit of documents, the Defendant would be entitled to prove its accuracy through any of the aforesaid modes. For that purpose, the Defendant shall be entitled to prove the tape recorded conversation through the recording of the voice of the Plaintiff and having it verified by the forensic expert as prayed for by him in prayer (ii) of this Notice of Motion.

IN THE HIGH COURT OF BOMBAY

Notice of Motion No. 8 of 2010 IN Suit No. 16 of 2008

Decided On: 28.01.2011

 Havovi Kersi Sethna  Vs. Kersi Gustad Sethna

Hon'ble Judges/Coram:

R.S. Dalvi, J.

Citation: 2011(3) BOM CR 100

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Whether court can permit production of documents at belated stage?

 Having regard to the submissions advanced in the light of over all facts of the case, I am of the view that the trial Court has erred in rejecting the application seeking production of original documents. Although the trial Court may be justified in observing that as per the requirement of law, the plaintiff ought to have produced all the original documents with the plaint or immediately after settlement of issues, but said provision not prevent the Court to accept the original documents at a stage. It is well within the scope of exercise of powers of Civil Court to allow such production at a stage subsequent to settlement of issues, if a case is made out to entertain such request. The Courts while dealing with procedural aspect are expected to adopt a pragmatic and liberal approach in entertaining such request and should not adopt hyper technical approach. Unless a case of serious prejudice or miscarriage of justice being caused to other side is made out, normally the Court is expected to entertain such request if proper explanation put forth by the party seeking such production at a latter stage. The provisions in the Code of Civil Procedure are procedural in nature and designed to facilitate justice and not to penalised or punished someone. The Courts are expected that while dealing with the procedural law, the construction of the provision be made in a manner which will serve the ends of justice and not to frustrate the object behind the provision. In the case of M/S R.N. Jadi & Brothers & Ors v. Subhashchandra reported in MANU/SC/7775/2007 : AIR 2007 SC 2571, the Apex Court has observed that the procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 3433 of 2018

Decided On: 17.04.2018

Meera Vs. Laxminaraya and Ors.

Hon'ble Judges/Coram:

V.L. Achliya, J.

Citation: 2018(5) MHLJ 809

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Whether court should permit production for photograph for the purpose of confronting plaintiff's witness?

 The learned counsel for the applicant contends that the photographs were produced in the course of the cross-examination of plaintiff's witness No. 1 only with a view to confront him with the assertion made by him in the deposition that he did not attend any function in question. According to him, the relevant provisions applicable for such situation would be sub-rule (3) of Rule 8A of Order VIII of the Code of Civil Procedure, 1908, which permits production of document at the time of cross-examination of the plaintiffs witness. It is therefore, submitted that the Court below has clearly overlooked this provision while deciding the application below Exh. 91. On the other hand, the learned counsel for the non-applicant, besides the reasons assigned by the trial Court, also relied upon Order XVIII, Rule 17A to contend that it was not open to the plaintiff to produce document at such belated stage.

4. Having considered rival arguments, I am of the view that the Court below has clearly overlooked the provisions of Sub-rule (3) of Rule 8 A of Order VIII of Civil Procedure Code, which entitles the applicant to produce the document during the cross-examination of the plaintiffs witness. The Court below therefore, ought to have permitted the applicant to produce the said document as the same was being produced for the limited purpose of confronting the plaintiffs witness No. 1.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

C.R.A. No. 816 of 2000

Decided On: 07.09.2000

Herald Prashant Lal Vs.  Dorthy

Hon'ble Judges/Coram:

A.M. Khanwilkar, J.

Citation: 2001(1) ALLMR 152

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What are necessary conditions for grant of permission for production of document by plaintiff if it was not annexed with plaint?

 The Court also says that nothing prevents the Court in its discretion to grant leave subsequent to the documents being produced before the Court even though such documents were not annexed to plaint or included in the list annexed to the plaint and no pedantic approach should be adopted. At the same time, this Court also says it would depend on the facts of each case and the order of the Court in that regard will be speaking and reasoned order. The Court cannot give a speaking and reasoned order unless an application is made for leave to produce such documents that were not presented with the plaint or entered in the list annexed to the plaint. Therefore, the plaintiff will have to apply explaining as to why these documents were not annexed to the plaint or included in the list of documents and why leave should be granted. It is not for the defendants, as submitted by Mr. Rajasekhar, to take out an application explaining what prejudice will be caused if the document is accepted in evidence.

IN THE HIGH COURT OF BOMBAY

Admiralty Suit No. 33 of 2010

Decided On: 30.10.2014

Coromandel International Ltd. Vs. M.V. Glory I

Hon'ble Judges/Coram:

K.R. Shriram, J.

Citation: 2015(1) ALLMR 619

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Whether court should permit production of expert report during pendancy of proceeding?

 Even if assumingly, the original building plan hence stands appended with rent petition, yet when it may not disclose with, the, utmost precision, and, with ultra specificity, as may, hence stand disclosed in the report, of, the expert, the utmost necessity, of, the landlord/respondent herein, hence, bona fidely requiring it, for personally using it, upon, its being vacated, under, order(s), of, eviction being rendered by the learned Rent Controller, (i) thereupon also when, the expert's report, upon, its adduction, may also hence support the utmost necessity of the landlord, and, further may enable, the, emergence, of, best evidence, vis-à-vis, his bona fide(s), in, seeking, the, eviction of the tenant/petitioner herein, therefrom, (ii) whereupon, the apt leave is granted, for its being tendered into evidence, given its affording, being concomitantly both just and essential, for resting the apt controversy.

5. Be that as it may, even otherwise, the courts of law, are, expected to lean towards granting the apt leave, dehors any afore stricto sensu, construction being meted to the afore coinage hence occurring in the aforesaid statutory provisions, (i) unless demonstrable prejudice would ensue, to the petitioner/tenant or unless the discretion exercised, by the courts, in, permitting its/theirs being tendered into evidence, is, visibly rather grossly flawed, (ii) given courts, upon, discerning, from, the pleadings, the, necessity of its/their adduction, hence, for resting a clear clinching finding, upon the apt issue, thereupon, may being constrained, to validly conclude qua the apt leave being rather accordable. Significantly, hereat when for reasons aforestated, the afore report of the expert, is both, just and essential, for enabling the applicant/landlord, to, prove the apt ground, and, when the petitioner herein/tenant, would also hold the right, to cross-examine him, and, when hence no palpable prejudice would stand encumbered, upon, the non-applicant/petitioner/tenant, thereupon, this Court is constrained, to affirm the impugned order.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CMPMO No. 251 of 2018

Decided On: 28.09.2018

 Suman Bala Vs. Rakesh Sood

Hon'ble Judges/Coram:

Sureshwar Thakur, J.

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Whether court should draw an adverse inference if a party fails to produce a document?

As can be seen from the pleadings, the plaintiff in the plaint had referred to the sanction dated 4-9-1989. This order of sanction was admitted by both the defendants and was set up as a justification for erection of the wall. Once it was an admitted position on record that there existed an order of sanction dated 4-9-1989, there was no question of drawing any adverse inference against the defendant No. 1 for not producing this order. Failure to produce a document, existence of which is not in dispute can hardly be a matter for drawing adverse inference. In the matter of drawing of adverse inference, the Hon'ble Supreme Court in case of Ibrahim Uddin and another (supra), has held that the aspect of drawing an adverse inference is required to be decided by the Court after considering the pleadings of the parties and the evidence on record. It is to be considered as to whether the other side could have sought for production of such document. Presumption as to adverse inference is permissible if the other evidence is shown to the contrary. In the present case, the existence of the sanction order dated 4-9-1989 is not in dispute. The plaintiff did not give any notice to the defendants to produce this order of sanction under provisions of Order XI of the Code. The defendant No. 1 was never called upon to produce this document so as to draw adverse inference against him for its non-production. It being an admitted position on record that such sanction had been granted, the Appellate Court erred in drawing adverse inference against the defendant No. 1 for its non-production. The substantial question of law No. (i) stands answered accordingly.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

S.A. No. 238 of 2000

Decided On: 14.09.2017

 Ratanlal Vs.  Shantabai and Ors.

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

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Whether production of documents can be allowed if no foundation for those documents is laid in plaint?

 Shri Ghosh kept saying that defendants can cross-examine the witness on these documents and no prejudice will be caused to defendants. But the fact is there are no pleadings in the plaint to the effect that these correspondence were sent to Mr. Karyakin and defendant No. 2 has admitted his liability. Only if such averment were there, defendants would have denied in the written statement and an issue would have been framed as to whether plaintiff proves that they sent these emails to defendants and whether defendants by these emails have admitted liability. Therefore, certainly, grave prejudice will be caused to defendants because it could be argued that there is no denial in the plaint. And it is settled law that evidence cannot be led on facts which have not been pleaded in the plaint or in the written statement.

14. Moreover, in the affidavit in support, it says that the documents to be introduced were under the control of Mr. Mohnish Mackdani as he was responsible for the day-to-day operations of plaintiff. However, plaintiff does not explain why only these 22 documents were in the control of Mr. Mohnish Mackdani wherein in Admiralty Suit No. 31 of 2013 about 147 documents and in Admiralty Suit No. 11 of 2013 about 900 pages of documentary evidence were in control of Ashish/Pratap Khialani. The plaintiff has been economical with truth.

15. In the circumstances, even if these 22 documents proposed to be introduced cannot be termed as cooked up documents, still, these documents were very well available with the plaintiff throughout and in view of the contradictions or incongruity as noted above, the notices of motion have to be rejected.

IN THE HIGH COURT OF BOMBAY

Notice Motion No. 2269 of 2015 in Admiralty Suit No. 31 of 2013 and Notice Motion No. 2268 of 2015 in Commercial Suit No. 31 of 2013

Decided On: 31.01.2018

 Rasesh Shipping Services Vs. R.V. Akademik Boris Petrov and Ors.

Hon'ble Judges/Coram:

K.R. Shriram, J.

Citation: AIR 2018 (NOC) 718 Bom

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