IMPORTANT POINTS
If the witness denies the document, then what happens? Should the document be returned to the party which produced it or should the Court retain it? This, again, is not to difficult to answer because the document certainly will have to be marked, though not admitted to evidence and retained on file so as to enable the Court to subsequently, identify it, with reference to the question put to the witness when it was produced, while assessing the evidence and finally deciding the suit. This is more because, it is now too well settled for restatement that the mere marking of a document as an exhibit, be that by use of alphabets or numbers, is only for the purpose of its identification and has no relation with its proof.

JUDGMENT :

DEVAN RAMACHANDRAN, J.

1. The law permits to either side in every trial - civil or criminal - opportunity to contradict a witness during cross examination and this has its hypostasis on Section 145 of the Indian Evidence Act.

2. Though the word is not so used, in usual paralance this is achieved by “confronting” a witness with a document or other relevant material while being subjected to cross examination.

3. This is what the petitioner herein - the plaintiff in O.S. No. 159/2013 on the files of the Sub Court, Kannur - attempted by confronting the defendant, while he was deposing as a witness for his defence, with a new document; but which met with express disapproval from the Court, thus refusing to allow him to do so for the reason that the said document had not been produced on record earlier.

4. The petitioner assails the approach of the Trial Court as being contrary to law and unlawful; thus praying that the said Court be directed to “allow the petitioner to confront the document sought to be produced during cross examination of the respondent and permit the petitioner's counsel to ask questions based on the documents so produced (sic).”

5. As is perspicuous from the afore factual narration, the relevant aspects for evaluation by this Court is whether the Trial Court could have refused to allow the counsel for the petitioner to contradict the witness for the defendant with new documents never before produced before it and whether the said documents ought to have been marked in evidence.

6. I have heard Sri. Mohammed Shafi, learned counsel appearing for the petitioner and Sri. P.K. Ravisankar, learned counsel appearing for the respondent.

7. The primary contention of Sri. Mohammed Shafi which is also available from paragraph 2 of this original petition, is that the petitioner/plaintiff was legally competent to confront the witness for the defendant with documents in his possession, but never formally produced; asserting that, by doing so, the witness would have been compelled to speak the truth, on account of the surprise element regarding its contents. The averments in paragraph 2 of this original petition, therefore, certainly require to be read, for which purpose, I extract it below:

“2. After settling the issue, the Court commenced evidence on 27.8.2019. The plaintiff's evidences were already over and the defendant's evidence was started on 16.10.2019. The defendant submitted proof affidavit and was ordered to be cross examined by deputing advocate commissioner. The cross examination was started on 16.10.2019 itself and continued the next day on 17.10.2019. In the process of cross examining defendant as DW-1, the petitioner's counsel tried to ask certain pertinent questions with reference to a document in a bid elicit certain material aspects touching the contentious issues as well as to prove the veracity and integrity of the witness by showing the said document to witness that was not produced earlier along with the plaint or by separate IA for receiving additional documents. The attempt was to bring in evidence with reference to a document not produced before the court but falling under the scope and ambit of order 13 Rule 3 CPC.”

8. Sri. Mohammed Shafi, then proceeded to argue that Order XIII Rule 3 of the CPC, permits confrontation of a witness with a document not produced in Court, as per the mandate of Rule 1 of the said Order, at the time of cross examination of a witness and that the Trial Court has egregiously erred in not permitting his client to do so. Explaining the facts involved, he submitted that initially, the Court had deputed an Advocate Commissioner to examine the witness and that when one document, which had not been earlier produced in Court, was attempted to be marked by the petitioner/plaintiff by confronting him, it was objected to by the learned counsel appearing for the defendant and therefore, that the Commissioner stopped the cross examination and placed the matter before the Trial Court