A party to a suit cannot be equated with a witness.

ORDER :

AVINASH G. GHAROTE, J.

1. The learned Single Judge of this Court, noticing a difference of view in two judgments of learned Single Judges of this Court, one being Vinayak M. Dessai Vs. Ulhas N. Naik and others, 2018 (2) Mh.L.J. 348 and the other being Purushottam s/o Shankar Ghodgaonkar Vs. Gajanan s/o Shankar Ghodgaonkar and others 2012 (6) Mh.L.J. 648, had framed the following questions, which have been referred to the Division Bench for an answer :-

(1) Whether a party to a suit i.e. plaintiff/or defendant is also a witness and the provisions of Order VII Rule 14, Order VIII Rule 1-A (4) (a) and Order XIII Rule 1 (3) (a) of the CPC need to be interpreted and applied by equating “party” with a “witness” ?

(2) Whether documents can be directly produced at the stage of cross-examination of a party and/or a witness to confront him/her without seeking any prior leave of the Court under Order VII Rule 14 (4), Order VIII Rules 1 (A) (4) (a) and Order XIII Rule 1 (3) (a) of the Civil Procedure Code ?

(3) Whether the observations made in the judgment in the cases of Purushottam s/o Shankar Ghodegaonkar (supra) and Vinayak M. Dessai (supra), to the effect that permitting production of documents directly at the stage of cross-examination of a witness and/or a party to a suit would amount to springing a surprise and hence, it is impermissible, are correct in the light of the plain reading of the aforesaid provisions and if accepted it would lead to whittling down the effectiveness of cross-examination of a witness and/or a party ?

Looking to the nature of the controversy the mention of Order VII Rule 14 in question no.1 would in fact refer to Order VII Rule 14 (4) of C.P.C.

2. Mr. Masood Shareef, learned Counsel for the petitioner in Writ Petition No.7717 of 2019, Mohd. Abdul Wahid Vs. Smt. Nilofer in respect of the first question, has invited our attention to paras 14 to 18 of the referral order, and submits that a party in all cases, has to be equated with a witness. He invites our attention to the provisions of Order VII Rule 14, Order VIII Rule 1-A (4) (a) and Order XIII Rule 3 (a) of the Code of Civil Procedure to contend that a conjoint reading of the above provisions, would point out, that the plaintiff, is entitled to step into the witness box in support of his claim as laid out in the plaint and to have himself cross-examined by the other side, which clearly indicates that the plaintiff(s) as well as the defendant(s), as a party to the lis, is equated with a witness.

3. He further invites our attention to the provisions of Order XVI Rule 1 and also to Order XVI Rule 21 and submits that when the provisions of Order XVI, as indicated by Rule 21 therein, apply to parties summoned also, the same is a further indication of the party to the lis being equated with a witness.

4. He further places reliance upon Order XVIII Rules 3 (A), 4, 5 and 7 to submit that the Rules for recording of evidence also do not make any distinction between a party and a witness; there are no separate rules for a party and a witness, and therefore a party has to be equated with a witness. Relying upon the provisions of Order XVIII Rule 17 which contains the power of the Court to recall and examine witness, he submits that the power is also used to recall the party also, which again is an instance of the Code treating the party as equal to the witness. He further places reliance upon the provisions of Order XVIII Rule 19, the power of the Court to get statements recorded on commission and contends that this power is exercisable in respect of the party also, in addition to being available for a witness, which again would indicate that the party is equated with the witness by the Court.

5. Mr. Shareef, learned Counsel for the petitioner, by inviting our attention, to the provisions of Section 118 of the Evidence Act, contends that there is no distinction made between a party and a witness in the matter of being entitled to testify. Further placing reliance on