The court ruled that documents intended for cross-examination can be permitted under Rule 1-A of the Civil Procedure Code, clarifying restrictions imposed by the lower court were not legally justified.

ORDER :

Sujoy Paul, J.

With the consent, finally heard.

2. In this petition filed under section 227 of the Constitution, the parties are at loggerheads on two aspects. In an application filed by respondent/wife under section 13 of the HINDU MARRIAGE ACT , 1955 during cross-examination of the wife, the petitioner/husband drew attention of the wife on Exh.D/5, a prescription/medical document, on which the wife responded that she has no relation with this document. The Court below put a note below para 31 of the cross-examination and opined that the said document cannot be used for cross-examination. The petitioner before his examination-in-chief may file the said medical document in accordance with law and then can mark it as an exhibit.

3. The parties are at loggerheads on yet another note, which is appended under second question of para 54. The first question in this para was whether the wife left flat of Joy Vargees on her own volition? The wife responded that the husband used to quarrel and beat her and threaten her to give divorce and therefore, she left the flat. The next question of the husband in the cross-examination was as to why husband used to assault her? The Court appended the impugned note that this question can be asked only to the non-applicant/ petitioner and therefore, disallowed the question.

4. Criticizing both the notes, Shri Avinash Zargar, learned counsel for the petitioner submits that as per Order 8, Rule 1-A of the CIVIL PROCEDURE CODE the petitioner could have very well used the relevant document for cross-examination of plaintiff or her witnesses. He also placed reliance on a Delhi High Court judgment in Bhag Singh Gambhir and others vs. Rama Arora dated 8-7-2022.

5. The second note whereby petitioner was deprived of cross-examination is called in question by contending that there is no prohibition under the Evidence Act or otherwise, to put the said question and the said question will not prejudice the wife in any manner. Thus, impugned order runs contrary to the aforesaid provision of the CIVIL PROCEDURE CODE and also the Evidence Act. Thus, impugned notes be set aside and Court below be directed to permit the petitioner to ask relevant questions.

6. Shri Arjun Bajpai, learned counsel for the respondent/wife submits that the wife in para 31 of her cross-examination made it clear that she has nothing to do with the medical documents and therefore, no fault can be found in the note appended to para 31.

7. Similarly, Shri Bajpai supported the other impugned note and urged that first question of question number 54 and second one are inter-related and in that context, both the questions and answers must be read and Court below has rightly read and put a note below the second question of para 54.

8. Parties confined their arguments to the extent indicated above.

9. I have heard the parties at length and perused the record.

10. Rule 1-A was inserted in Order 8 w.e.f. 1-7-2002. It reads as under :—

“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) ............

(3) ............

(4) Nothing in this rule shall apply to documents —

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

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

(Emphasis supp