Order VIII Rule 1A CPC No Bar To Producing Documents For Cross-Examination If Not Foreign To Pleadings: Bombay High Court
Isabella Mariam
The High Court of Bombay, Single Bench of Justice Gauri Godse, has held that a defendant is not required to file a separate application for the production of documents intended to confront a witness during cross-examination, so long as those documents are not foreign to the pleadings on record. The Court allowed a writ petition challenging a trial court order that had refused to permit a defendant, sued for allegedly misusing a cancelled power of attorney to execute sale deeds without consideration, to produce payment receipts before the plaintiff-witness during cross-examination. The Civil Procedure Code, the Court noted, expressly carves out an exception permitting such production at the cross-examination stage for the purposes of contradicting a witness or refreshing the witness's memory, without requiring prior court leave.
The petition was filed by defendant no.1 challenging an order of the trial court which rejected his application seeking permission to produce certain documents for confronting plaintiff no.1 during cross-examination. The respondents were the original plaintiffs who had instituted a civil suit seeking cancellation of three sale deeds dated 3 April 2012 and a deed of rectification dated 10 April 2012 executed by defendant no.1, acting as the constituted attorney of the plaintiffs, in favour of defendant no.2. The plaintiffs also sought a decree of injunction restraining the defendants from interfering with their possession of the suit property or creating third-party interests.
The petitioner contended that the registered power of attorney was executed for consideration and that a sum of ₹5 lakhs had been paid to the plaintiffs, with receipts issued in the name of plaintiff no.1. The defendant had filed a written statement pleading payment of consideration but had not produced the receipts at that stage as they were not available. An application for amendment of the written statement to include particulars of the receipts was rejected after commencement of the trial. Subsequently, the defendant filed an application seeking to produce the receipts during the cross-examination of plaintiff no.1 to confront him with those documents.
The plaintiffs opposed the request, arguing that the defendant had not produced the documents as required under Order VIII Rule 1A(1) of the Code of Civil Procedure and therefore could not rely upon them during cross-examination. They relied on precedents concerning the production of documents during trial and argued that such documents could not be introduced if they were intended to prove the original case of a party.
The Court examined the principles governing production of documents during cross-examination and the interplay between the procedural rules of the Code of Civil Procedure and the law of evidence. The Court recorded that “it is a settled law that what is not pleaded cannot be argued, as for the purposes of adjudication, it is necessary for the other party to know the contours of the case it is required to meet. It is equally well settled that the requirement of having to plead a particular argument does not include exhaustively doing so.”
Referring to the governing procedural framework, the Court observed that the provisions relating to production of documents also contain exceptions permitting documents to be produced during cross-examination. It stated that “the law to produce documentary evidence by a party at the relevant stage as provided under the Orders VII, VIII and XIII provides for an exception permitting production of a document for cross-examination of the witness of the other party or to refresh the memory of a witness, even if that document was not produced at the time of filing the plaint or written statement or at the time of settlement of issues.”
The Court further recorded that the procedural provisions must be read with the rule governing cross-examination under the law of evidence. It stated that “Section 145 of the Evidence Act permits a party to cross-examine the witnesses by contradicting them with the previous statement of the witnesses made in writing… Therefore, the Court must allow a party to contradict a witness by showing him his previous statement, which was not produced earlier, provided it is relevant to the matters in question.”
Addressing the objections raised by the plaintiffs, the Court observed that “the documents sought to be produced to confront plaintiff no. 1 cannot be said to be divorced from or foreign to the pleadings, as the written statement contains the pleadings regarding payments made to the plaintiffs.” It further stated that “there is no substance in the submissions made on behalf of the plaintiffs that, because the defendant no.1’s application to amend the written statement… was rejected, he would not be entitled to produce the documents at the time of cross-examination.”
The Court also recorded that “the documents that are not divorced from or foreign to the pleadings made can be permitted to be produced during the cross-examination of a witness, for the effective cross-examination, or to jog the memory of the witness.”
The Court directed: “the impugned order dated 8th December 2021, passed by the 2nd Joint Civil Judge, Senior Division, Khed, Rajgurunagar, below Exhibit 117 in Special Civil Suit No. 385 of 2014, is quashed and set aside. The Trial Court shall permit defendant no. 1 to produce the documents as per the list at Exhibit 118, filed along with the application at Exhibit 117, to confront plaintiff no. 1 during his cross-examination.”
Advocates Representing the Parties
For the Petitioners: Mr. Mateen Shaikh a/w Mr. Shrinivas Kshirsagar, Mr. Parvez Inamdar and Ms. Muskan Shaikh
For the Respondents: Mr. P. J. Thorat i/b Mr. Prabhanjan Gujar
Case Title: Jijabhau Dyaneshwar Temgire v. Gangaram Khandu Temgire & Ors.
Neutral Citation: 2026:BHC-AS:10404
Case Number: Writ Petition No. 8080 of 2022
Bench: Justice Gauri Godse
