T M MOHANA Vs. V KANNAN

JUDGEMENT

(1.) The defendant in O. S. No. 116 of 1975, I Additional Sub-Court, Pondicherry, is the petitioner in this civil revision petition, which is directed against the order of the Court below, holding that the petitioners cannot confront the respondent herein with a document not filed or disclosed earlier in the course of his cross-examination as P.W. without obtaining prior leave of the Court by filing an application to receive the document after notice to the respondent, In the suit, the respondent has prayed for the relief of recovery of money against the peti-ioner being the value of the construction work done by him and also cost of materials stated to have been unlawfully taken away by the petitioner and other incidental reliefs. This claim of the respondent has been denied by the petitioner in her written statement on several grounds, which need not be noticed in detail. On 6th October, 1982, at the time of the cross-examination of the respondent as P. W. l,the petitioners counsel confronted the respondent with a document then produced by the petitioner. An objection was raised by the respondent that that document was not brought before the Court or to the notice of the Court in accordance with the provisions of Order 8, rule 1 (2), CODE OF CIVIL PROCEDURE, 1908, and the petitioner cannot bypass those mandatory provisions by resorting to Order 13, rule 2 (2) (a), CODE OF CIVIL PROCEDURE, 1908 and that in any event, the petitioner should have obtained leave of Court under Order 8, rule 5, CODE OF CIVIL PROCEDURE, 1908, to produce the document with which P. W. 1 was confronted. The Court below upheld this objection holding that the petitioner is not entitled to confront the respondent examined as P. W. 1 with the document during his cross-examination without filing an application to receive that document after notice to the respondent.

(2.) The learned counsel for the petitioner submitted that a document intended to be produced or produced during the course of cross-examination of the respondent need not be included in the list of documents annexed to the written statement either under Order 8, rule 1(2) (a) or Order 8, rule 1 (2) (b), CODE OF CIVIL PROCEDURE, 1908, and a failure to do so, would not result in such a document not being received in evidence without leave of Court under Order 8, rule 1 (5) CODE OF CIVIL PROCEDURE, 1908 It was further submitted that as Order 8, rule 1 (6), CODE OF CIVIL PROCEDURE, 1908 specifically excludes the applicability of Order 8, rule 1 (5), CODE OF CIVIL PROCEDURE, 1908, to documents produced for the cross-examination of the witnesses of the plaintiff or in answer to any case set up by the plaintiff subsequent to the filing of the plaint, or handed over to a witness for the purpose of refreshing his memory, there was no need to obtain leave of Court. The learned counsel also drew attention to Order 8, rule 8 A (3), CODE OF CIVIL PROCEDURE, 1908, which similarly excepted documents produced for the cross-examination of the plaintiffs witnesses from being produced by the defendant under Order 8, rule 8-A (1), CODE OF CIVIL PROCEDURE, 1908, Reliance was also placed by the learned counsel upon the provisions of Order, 13, rule 2 (2) (a) CODE OF CIVIL PROCEDURE, 1908, to contend that where the document is produced for the cross-examination of a witness of the other side, its earlier production or inclusion in the list of documents or even the obtaining of the leave of Court, would be wholly unnecessary. Ramajt Kanungo v. Ibcon Pvt. Ltd.1, was also relied on in this connection.

(3.) On the other hand, the learned counsel for the respondent contended that the newly introduced provisions under Order 8, rule 1 (2) to (4) and Order 8, rule 8-A (1), CODE OF CIVIL PROCEDURE, 1908, contemplated disclosure by the defendant of his documents so as to prevent the defendant from concealing the contents of the document and later on springing a surprise on the plaintiff and that was why if a document was not disclosed in the list, it could not be received in evidence without leave of Court and that the rigour of those provisions cannot be nullified by resorting to Order 13, rule 2 (2) (a), CODE OF CIVIL PROCEDURE, 1908. It was also further contended by the learned counsel for the respondent that the exception under Order, 8, rule 1 (6) and Order 8, Rule 8-A (3), CODE OF CIVIL PROCEDURE, 1908, if at all, may apply in relation to the cross-examination of the witnesses on behalf of the party and not the party himself, when examined as in this case.