VINAYAK M DESSAI Vs. ULHAS N NAIK

JUDGEMENT

(1.) This Petition takes exception to the order dated 28.09.2016 passed by learned Civil Judge, Junior Division, at Panaji, pursuant to which she allowed the production of the document at the instance of the Defendant to confront the Plaintiff in the course of his cross examination by overruling the objections raised by the Plaintiff that such course of action was not permissible in law.

(2.) Heard Shri J. Godinho, learned Advocate for the Petitioner who raised a poser whether the Defendant could be allowed to produce documents in the course of the cross examination of the Plaintiff. In that context, he referred to Order XIII Rule 1(3)(a) of the Civil Procedure Code which reads thus :

(3.) Shri D. J. Pangam, learned Advocate for the Respondents-Defendants, at the outset, raised a rhetoric that in case the plaintiff was not a witness as sought to be canvassed on behalf of the Petitioner, the whole system of recording evidence would collapse. On his part, he invited attention to Order XIII Rule 1, 2 and 3(a) of the Code of Civil Procedure with emphasis on Rule 3(a) in particular which mandates a party to appear before the other witnesses and reading as "where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined unless the Court for reasons to be recorded, permits him to appear as his own witness at a later stage." It was thus his contention that there was no distinction between a party and a witness and that a party to the proceeding on examination was akin to a witness and therefore the objection raised on behalf of the Petitioner was without any basis. His next contention was that the Judgment in Purshottam vs, Gajanan holding that a party was not a witness by relying on the Judgment in Union of India & anr. vs. B. D. Sharma was per incuriam since it did not consider the provisions of Order XIII Rule 3(a) of the Civil Procedure Code. He next adverted to what is meant by "evidence" as defined in Section 3 of the Indian Evidence Act, 1872, meaning and including all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry. Therefore, it was his further submission that in case a party was not a witness, his testimony would not tantamount to evidence and which would be a disastrous interpretation.