HAROLD D. SANTOS Vs. BISWANATH GOENKA AND ORS.

JUDGEMENT

(1.) THE Petitioner Shri. Harold D. Santos Defendant of the Title Suit No. 18 (T)/81 of the court of Assistant to the Deputy Commissioner, Shillong impugned the judgment and order dt. 15.3.86 passed by the learned District Judge -cum -Additional Deputy Commissioner, Shillong in Misc. Civil Appeal No. 16 (T)/85 affirming the order dt. 12.8.85 passed in Title Suit No. 18 (T)/81.

(2.) IN due course of the proceeding of the suit both the Plaintiff and the Defendant filed their lists of witnesses and documents no prove their respective cases. Mr. U. Guidittee was shown as witness No. 1 for the Defendant in the list dt. 3.9.84. He was not a witness for the Plaintiff. But surprisingly he was brought to the dock as a witness No. 3 for the Plaintiff. During the course of cross -examining him, the Defendant produced an affidavit before him (P.W. -3), which he had sworn at an anterior point of time, in order to refresh his memory and to test his versity with reference to some statement of facts relating to the suit property. At this stage the Plaintiff raised objection. On heating the counsels of parties, the trial Court passed the order dt. 27.6.85 rejecting the objection of the Plaintiff and allowed the Defendant to cross -examine PW -3 with reference to the said affidavit and to receive the documents in evidence. Subsequently, the Plaintiff again filed an application to review the said order dt. 27.6.85 and the matter was reheard. The trial Court by this order dt. 12.3.85 revised his previous order dt. 27.6.85 and disallowed the Defendant to introduce the said documents into the evidence. Being aggrieved with the said order dt. 12.8.85, etc. Defendant preferred an appeal (Misc. Civil Appeal No. 16 (0)/85) before the District Judge cum -Additional Deputy Commissioner, Shillong. The said appeal was also dismissed and the order dt. 12.8.85 was affirmed. This led the Defendant to file the instant revision.

(3.) THE point in quest is whether Defendant has right to introduce a document not earlier indicated in his lists of documents at the stage of cross -examining the witness of the Plaintiff and to receive it m evidence as document for Defendant. The answer is available in Rule 1(6) and Rule 8A(3) of order 8, as well as in Order 13 Rule 2(2). Reception of documents in evidence is prohibited under Order 8 Rule 1(5) at the heading of the suit, if not already entered in the list of the documents under Order 8 Rule 1(2) on behalf of the Defendant, without leave of the Court. Order 8 Rule 1(2) and Order 8 Rule 1(5) are confined only to such documents that support the defence of the claim for the set off or counter claim and would not include a document with which the Plaintiff's witness is to be confronted during the course of his cross -examination. it is more explicit by Order 8 Rule 1(6) by stating that the bar against the reception of document in evidence, unless entered in the lists without leave of the Court, would not apply to documents produced for the cross -examination of the witness of the Plaintiff or is answer to a case set up by the Plaintiff subsequent to the filing of the plaint or handover to a witness of the Plaintiff merely to refresh his memory. Again an exception to Order 8 Rule 8A(1) and (2) is carved out under Order 8 Rule 8A(3) to the effect that nothing in that Rule shall apply to documents produced for the cross -examination of the Plaintiff's witness or in answer to any case set up by the Plaintiff subsequent to the filing of the plaint or a document handed over to a witness to refresh his memory. Order 13 Rule 2(2) again excepts the applicability to Rule 2(1) of Order 13, to the documents produced for the cross -examination of the witnesses of the other party or handed over to a witness merely to refresh his memory. Therefore, it was made cleat by the provisions of Order 8 Rule 1(2) and (vi) read with Rule 8A(1) and (3) and also Order 13 Rule 2(2) that at every stage at which the Defendant is called upon to produce the document and exception is always made with reference to document produced for cross -examination of the Plaintiff's witness or the cross -examination of the witness of the other party or in answer to a case set up by the Plaintiff subsequent to filing of the plaint, or with a view to refresh memory. In other words obligation to produce the documents relied upon by the Defendant at the stage contemplated under Order 8 Rule 1(2) and Rule 8A(1) and by both the parties under Order 13 Rule 1 Code of Civil Procedure has been done away within all those cases with reference to documents produced for cross -examination.