Code of Civil Procedure, 1908 – Party to a suit and a witness in a suit – Difference between – Phrase plaintiff’s/ defendant’s witness, if exclude the plaintiff or defendant themselves, when they appear as witnesses in their own cause:
Held: There is no difference between a party to a suit as a witness and a witness simpliciter – Witnesses and parties to a suit, for the purposes of adducing evidence, either documentary or oral are on the same footing – Function performed by either a witness or a party to a suit when in the witness box is the same – Phrase “so far as it is applicable” in Order XVI Rule 21 does not suggest a difference in the function performed – Provisions of the Code as also the Evidence Act do not differentiate between a party to the suit acting as a witness and a witness otherwise called by such a party to testify. [Paras 32, 14, 20, 17]
Code of Civil Procedure, 1908 – Ord. VII r. 14, Ord. VIII r. 1-A and Ord.r XIII r. 1 – Provisions if enjoins the party under-taking cross examination of a party to a suit from producing documents, for the purposes thereof, by virtue of the use of the phrase plaintiff/defendant’s witness or witnesses of the other party, when cross examining the opposite party:
Held: Production of documents for both a party to the suit and a witness as the case may be, at the stage of cross-examination, is permissible within law – Freedom to produce documents for either of the two purposes-cross examination of witnesses and/or refreshing the memory would serve its purposes for parties to the suit as well – Being precluded from effectively putting questions to and receiving answers from either party to a suit, with the aid of these documents would put the other at risk of not being able to put forth the complete veracity of their claim, thereby fatally compromising the said proceedings – Thus, in reference to the production of documents, so long as the document is produced for the limited purpose of effective cross-examination or to jog the memory of the witness at the stand is not completely divorced from or foreign to the pleadings made, the same cannot be said to fly in the face of the established proposition. [Paras, 32, 26, 30] Code of Civil Procedure, 1908 – Ord. XVI r. 21, 14, Ord. XVIII r. 3A – Term ‘witness’ – Meaning of:
Held: Witness is a person, either on behalf of the plaintiff or the defendant, who appears before a court to substantiate a statement or claim made by either side – s. 120 of the Evidence Act states that parties to a civil suit shall be competent witnesses – Word used is witnesses which implies that a witness otherwise produced as also the defendant or the plaintiff themselves, would stand on the same footing when entering evidence for the consideration of the court – Code itself speaks to the effect that when a party to a suit is to testify in court – Term witness does not exclude the party to the suit-plaintiff or the defendant, themselves appearing before the court to enter evidence – Evidence Act, 1860 – s. 120. [Paras 10, 14, 20]. Code of Civil Procedure, 1908 – Interpretation of – Guiding objectives – Stated. [Para 2]
Practice and procedure – Pleadings – Requirement of pleading a particular argument:
Held: What is not pleaded cannot be argued – For the purposes of adjudication, it is necessary for the other party to know the contours of the case it is required to meet – Requirement of having to plead a particular argument does not include exhaustively doing so. [Para 28] LIST OF CITATIONS AND OTHER REFERENCES
Vinayak M Dessai v. Ulhas N. Naik and Ors. 2017 SCCOnLine Bom 8515; Purushottam v. Gajanan 2012 SCCOnLine Bom 1176; Upper India Couper Paper Mills Co. Ltd. v. M/s Mangaldas and Sons 2004 SCC Online Bom 716; State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808; S.P. Chengivaraya Naidu v. Jagannath [1993] 3 Suppl. SCR 422 : (1994) 1 SCC 1; Miss T.M. Mohana v. V. Kannan 1984 SCC Online Mad 145; Amit M. Pathakji, Sr. Manager (Mech.) & Anr v. Bhavnaben Amitkumar Pathakji 2007 SC OnLine Guj 78; Sadayappan v. State (2019) 9 SCC 257; Ram Sarup Gupta v. Bishun Narain Inter College [1987] 2 SCR 805 : (1987) 2 SCC 555; Udhav Singh v. Madhav Rao Scindia [1976] 2 SCR 246 : (1977) 1 SCC 511 – referred to.
Jones v. National Coal Board 1957 2 QB 55 – referred to. P. Ramanatha Aiyar’s Advanced Law Lexicon – referred to. American Jurisprudence, Second Edition, 2007; Corpus Juris Secundum: A Contemporary Statement of American Law as Derived from Reported Cases and Legislation; Black, 7th Edn., 1999 – referred to.
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