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Gujarat High Court
Judgename :K.A.Puj
AMIT M.PATHAKJI SR.MANAGER (MECH.) - Appellant
Versus
BHAVNABEN AMITKUMAR PATHAKJI - Respondent
Special Civil Application 2303 Of 2005
Decided On : 06/12/2007
Whether document produced for cross-examination of witness can be rejected on ground of being belated and contrary to law?
Head Note :
Civil Procedure Code, 1908 (Central Act 5 of 1908) - Order 7 Rule 14, Order 8 Rule 1-A, Order 8 Rule 1-A(4), (i) (ii), Order 13(1)(3) - Order 13 Rule 2, 13 Rule 2(2)(a), 13 Rule 1, and Act, 46 of 1999 - Section 23 - Production of documents - During cross-examination of witness - Refusal to allow - Ground of being belated, irrelevant and against law - Finding as to - Sustainability - The provisions of code which provides production of documents before settlement of issues carvs out exception and says that non of the provisions would apply where document is produced for cross-examination of witness or handed over to a witness merely to refresh memory - The document sought to be produced cannot be said to irrelevant also because respondent had raised the issue in her examination-in-chief that suit was agreed to be withdrawn and when there was no such agreement which can be proved on basis of the said letter alone - The letter is very much relevant to the issue involved in the suit - The third contention that Order 13 Rule 2 was deleted from the Code and hence the said provision cannot be relied upon for production of the document during cross-examination of witness does not need acceptance in face of clear provision of relevant statutory provisions of law as well as decided case law - Impugned order is contrary to the provisions contained in the Code hence it is set aside.
Held :
It is for the first time in her examination-in-chief she has stated that the compromise was made between the parties and both the suits were agreed to be withdrawn. As per the compromise she has withdrawn the suit being Regular Civil Suit No. 705 of 1987, on 25.11.1987. For the purpose of withdrawal of the present suit, signature of the Petitioner/Plaintiff No. 1 was required and as soon as he would come from Surat the same would be withdrawn. To controvert this averment, which the respondent has made in her examination-in-chief the petitioner has sought permission of the Court to show a letter which is in his possession, which was objected to and hence application Ex.154 was preferred by the petitioner seeking leave of the Court to produce the said letter. As far as rejection of the said application is concerned, the trial Judge has stated that this application is belated one. It is true that the letter is of 1987 and it was sought to be produced in 2004. However, the occasion arose for the first time in 2004 when the averment was made by the respondent about withdrawal of the suit and to controvert this submission letter was sought to be produced. In this view of the matter, it cannot be said that the letter is belated one. [Para 11]
The second reasons given by the trial Judge is that the letter is not relevant to the issue involved in the suit. As a matter of fact, the respondent has raised the issue in her examination-in-chief that the suit was agreed to be withdrawan and when there was no such agreement which can be provided on the basis of the letter, it is difficult to accept the reasoning of the trial Judge that the said letter is not relevant to the issue involved in the suit. [Para 12]
The third reason given by the trial Judge is that the Order-13 Rule-2 was deleted from the statute book and hence the said provisions cannot be relied on for the purpose of production of the document. This is also not tenable in view of the relevant statutory provisions as well as decided case law. [Para 13]
If the said statutory provisions are taken into consideration it becomes clear that if any document is sought to be relied upon or produced for the purpose of cross-examination of witness the exception carved out would come to the rescue of the party and the production cannot be denied merely on the ground that the same was not produced either at the time of filing suit or at the time of filing the written statement, as the case may be. [Para 15]
Law Laid Down :
When order is perverse or contrary to the provisions of law interference by Court in exercise of its writ jurisdiction is inevitable.
Case Law Analysis :
M/s Rajasthan Spinning and Weaving Mills Ltd., Bhilwara vs. Rajasthan Textile Industries, Madanganj, AIR 1987 Raj 60 [Para 8];; Miss T.M. Mohana vs. V. Kannan, AIR 1984 Mad 14 [Para 8];; Ranjit Kanungo vs. Ibcon Pvt. Ltd. Bombay, AIR 1982 Kant 219 [Para 8];; Balwant Kumar and Anr. vs. Kailash Behl and Anr., AIR 2003 HP 48 [Para 8].-Relied on
( 1 ) THE petitioners - original plaintiffs have filed this petition under Article-227 of the Constitution of India challenging the order passed by the learned Civil Judge (S. D.) Vadodara. below an application Ex. 154 in Regular Civil Suit No. 774 of 1987 on 3. 1. 2005, on the ground that the said order is absolutely illegal, unjust, improper, irrational, invalid and unreasonable. It is also challenged on the ground that the said order is passed with total non-application of mind and on misconception of facts and law. It is further challenged on the ground that it is passed in violation of and in utter disregard of the statutory provisions of the Code of civil Procedure and against the judicial pronouncements.
( 2 ) NOTICE was issued by this Court on 22. 2. 2005 and ad-interim relief in terms of para-8 (E) of the petition was granted and further proceedings of the Regular Civil Suit no. 774 of 1987 were stayed. The Court has also permitted the petitioner to delete the name of petitioner No. 2 as he has expired. The Court further observed that when the witness attempted to submit the case other than specifically pleaded in the written statement and the cross-suit, the petitioner was compelled to produce and show one document dated 23. 11. 1987, addressed by the witness - Bhavnaben. The Court has also asked the petitioner to produce copy of the written statement as well as copy of the plaint of the cross-suit before the Court. The court thereafter issued rule on 29. 3. 2005 and ad-interim relief granted earlier was allowed to continue.
( 3 ) IT is the case of the petitioner that the petitioner No. 2 purchased the property in question from his income and hence the said property became his self-acquired property. In the year 1987, the petitioner no. 2 found it difficult to maintain the property in question and hence for its renovation the respondent went to Vadodara to look after the renovation work of the property in question. The respondent desired to give property in question on rent to some third party. However, the petitioners did not want to give this property on rent to any third party. The petitioner No. 2 therefore gave a public notice in the year 1987 through an advertisement in the local newspaper making it clear that the owner of the property did not want to give it on rent and hence no one should enter into any negotiation with the respondent for that purpose. The petitioners apprehended that the respondent might transfer the property in their absence and hence the. petitioners instituted a suit before the Civil Court (J. D.)which ultimately came to be transferred to the Civil Court (S. D.) and came to be registered as Regular Civil Suit No. 774 of 1987.
( 4 ) DURING the pendency of the said suit the respondent wrote a letter to the petitioner No. 2 stating that she had performed all the formalities to withdraw the suit filed by her for getting injunction against any action by the petitioners to remove her from the property in question. The said suit was registered as Civil Suit No. 705 of 1987. Thereafter, the said suit was withdrawn unconditionally. The respondent in the said letter had not stated anything with respect to any consensus about withdrawal of the suit filed by the petitioners on withdrawal of suit filed by her. The respondent came out with the defense that there was mutual consensus between the parties that the parties would withdraw both the suits, for this purpose it became necessary to produce the letter dated 23. 11. 1987.
( 5 ) DURING the course of cross-examination of the respondent on 24. 9. 2004, a letter dated 23. 11. 1987 was sought to be produced for the cross-examination of the respondent vide an application Ex. 154. The application Ex. 154 came to be rejected by the learned trial Judge on the ground that the same was belatedly filed and that the said document is not relevant to the issue involved in the suit and that the provisions for production of the documents for cross-ex
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