The Court clarified that parties and witnesses are subject to similar disclosure requirements regarding document production in civil procedures.

JUDGMENT : 

BISWAROOP CHOWDHURY, J.

The Court: A question of law was raised by the Learned Advocates for the parties as to the statutory requirement to disclose a document before the same being relied in evidence.

Learned Advocate representing the defendant in T.S. 7/2005 and plaintiff in T.S. 8 of 2005 submits that it is not necessary to disclose the document prior to being relied and Learned Advocate representing plaintiff in T.S. 7/2005 and Defendant in T.S. 8/2005 submits that the document ought to have been disclosed.

Learned Advocate for the Defendant in T.S. 7/2005 submits that witness is not the defendant or plaintiff and is deposing without being summoned thus document need not be disclosed. Learned Advocate further submits that disclosure is required to be done by the parties and not by the witnesses. Learned Advocate also submits that when any party is deposing rules are to be followed and it is not applicable to witnesses. Learned Advocate relies upon the provisions contained in chapter XIV of High Court Rules and Order XVI Rule 1 Sub-Rule 3 CPC and the decision of the Hon’ble Supreme Court in the case of Vidh yadhar Vs. Manikrao and Anr reported in 1999 (3) SCC P-573.

Learned Advocate for the plaintiff in T.S. 7/2005 submits that the dispute is not production of document but method of producing document. Learned Advocate further submits that the witness who intends to produce a document is not a summoned witness but is deposing on behalf of the defendant. Learned Advocate also submits that no document can be introduced without disclosing Learned Advocate relies upon chapter IX Rule 1, Chapter X Rule 1 and Chapter XI Rule 1 and 2 of the Original Side Rules and Order VIII Rule 1A CPC. Learned Advocate also relies upon the decision of the Hon’ble Supreme Court in the case of Mahammed Abdul Wahid Vs. Nilofer and Anr. reported in (2024) 2 SCC P-144.

Before proceeding to decide the material in issue it is necessary to consider the provisions contained in Order VIII Rule 1A CPC. Order XI Rule 1 and 2 CPC, and Order XVI Rule 1 Sub-rule-3 CPC.

Rule 1A of Order VIII CPC provides as follows:

Rule 1-A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him – 1) where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counter claim he shall enter such document in a list and shall produce it in Court when the written statement is presented by him and shall at the same time deliver the document and a copy thereof to be filed with the written statement.

2) Where any such document is not in the possession or power of the defendant he shall wherever possible state in whose possession or power it is.

3) A document which ought to be produced in Court by the defendant under this rule but is not so produced 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:-

a) produced for the cross-examination of the plaintiff’s witnesses or

b) handed over to a witness merely to refresh his memory.

Order XI- Rule 1 of the Code of Civil Procedure Provides as follows:

1. Discovery by interrogatories-In any suit the plaintiff or defendant by leave of the Court may deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties and such interrogatories when delivered shall have a note at the foot thereof stating which of such interrogatories each of such persons is required to answer: provided that no party shall deliver more than one set of interrogatories to the same party without an order for that purpose. Provided also that interrogatories which do not relate to any matters in question in the suit shall be deemed irrelevant notwithstanding that they might be admissible on the oral cross-examination of a witness.

2. Particular interrogatories to be submitted.- on an application f