# CASE DETAILS MOHAMMED ABDUL WAHID v. NILOFER & ANR

- **Citation:** 2023 INSC 1075
- **Court:** Supreme Court of India
- **Decided:** 2023-12-14
- **Case number:** Civil Appeal No. 8146 of 2023
- **Bench:** B. R. Gavai, Sanjay Karol
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-mohammed-abdul-wahid-v-nilofer-anr-37090
- **Pages:** 27

## Headnote

Issue for consideration: Whether under the Code of Civil Procedure,
there is envisaged a diff erence between a party to a suit and a witness in a
suit, does the phrase plaintiff 's/ defendant's witness exclude the plaintiff or
defendant themselves, when they appear as witnesses in their own cause;
and whether Ord. VII r. 14, Ord VIII r. 1-A and Ord. XIII r. 1 CPC, enjoin
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(s)
plaintiff /defendant's witness or witnesses of the other party, when cross
examining the opposite party.
Code of Civil Procedure, 1908 - Party to a suit and a witness in
a suit - Diff erence 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 diff erence 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 diff erence in the function performed - Provisions
of the Code as also the Evidence Act do not diff erentiate 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]
867
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 eff ectively
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 eff ective
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 fl y 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 eff ect 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]
MOHAMMED ABDUL WAHID v. NILOFER & ANR.
SUPREME COURT REPORTS
[2023] 15 S.C.R.
868
Practice and procedure - Pleadings - Requirement of pleading
a particular argument:
Held: What is not pleaded cannot be argued -

## Text

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[2023] 15 S.C.R. 866 : 2023 INSC 1075
866
CASE DETAILS
MOHAMMED ABDUL WAHID
v.
NILOFER & ANR
(Civil Appeal No. 8146 of 2023)
DECEMBER 14, 2023
[B. R. GAVAI AND SANJAY KAROL, JJ.]
HEADNOTES
Issue for consideration: Whether under the Code of Civil Procedure,
there is envisaged a diff erence between a party to a suit and a witness in a
suit, does the phrase plaintiff 's/ defendant's witness exclude the plaintiff or
defendant themselves, when they appear as witnesses in their own cause;
and whether Ord. VII r. 14, Ord VIII r. 1-A and Ord. XIII r. 1 CPC, enjoin
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(s)
plaintiff /defendant's witness or witnesses of the other party, when cross
examining the opposite party.
Code of Civil Procedure, 1908 - Party to a suit and a witness in
a suit - Diff erence 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 diff erence 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 diff erence in the function performed - Provisions
of the Code as also the Evidence Act do not diff erentiate 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]
867
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 eff ectively
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 eff ective
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 fl y 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 eff ect 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]
MOHAMMED ABDUL WAHID v. NILOFER & ANR.
SUPREME COURT REPORTS
[2023] 15 S.C.R.
868
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.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8146
of 2023.
From the Judgment and Order dated 09.02.2021 of the High Court
of Judicature at Bombay at Nagpur in WP No. 7717 of 2019.
869
MOHAMMED ABDUL WAHID v. NILOFER & ANR.
Appearances:
Huzefa Ahmadi, Vinay Navare, Sr. Advs., Masood Shareef, Satyajit A
Desai, Yougant Dhillon, Siddharth Gautam, Abhinav K. Mutyalwar, Gajanan
N Tirthkar, Vijay Raj Singh Chouhan, Ms. Aishwariya Shinde, Ms. Anagha
S. Desai, Sudhanshu S Choudhari, Vatsalya Vigya, Advs. for the Appellant.
Dr. R S Sundaram, P. N. Gupta, Ramaswamy Sundaram, Mrs. Bharti
Gupta, Ms. Aashima Gupta, Naresh Kaushik, Manoj Joshi, Anand Singh,
Shubham Dwivedi, Ms. Shikha John, Ms. Lalitha Kaushik, Ms. Akshata
Singh, Rahul Sharma, Vardhman Kaushik, Somanatha Padhan, Advs. for
the Respondents.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
SANJAY KAROL, J.
Leave Granted.
2. In adjudicating this appeal, the thought to be borne foremost in
mind is that every trial is a search of truth. This purpose is succinctly
captured in the following terms in American Jurisprudence, Second
Edition, 2007:
"The purpose of trial is to determine the validity of the allegations.
The objective is to secure a fair and impartial administration of
justice between the parties to the litigation and not the achievement
of a hearing wholly free from errors. Once a civil action has been
instituted and issue is joined upon the pleadings, there must be a trial
on the issue before a judgment may be rendered.
Trial is not a contest between lawyers but a presentation of facts
to which the law may be applied to resolve the issues between the
parties and to determine their rights. It is also not a sport; it is an
inquiry into the truth, in which the general public has an interest."
It would be useful to also refer to the objectives in framing rules for
conducting civil proceedings. The Halsbury's Law of England state the
following overriding objectives of the Civil Procedure Rules:
SUPREME COURT REPORTS
[2023] 15 S.C.R.
870
(i) ensuring that the parties are on equal footing;
(ii) saving expense;
(iii) dealing with the case in ways which are proportionate:

(a) to the amount of money involved;

(b) to the importance of the case;

(c) to the complexity of the issues; and

(d) to the fi nancial position of each party;
(iv) ensuring that it is dealt with expeditiously and fairly; and
(v) allotting to it an appropriate share of the court's resources, while
taking into account the need to allot resources to other cases; and
(vi) enforcing compliance with rules, practice directions and orders.
The parties are required to help the court to further the overriding
objective.
Undoubtedly, perhaps unquestionably, the same objectives guide the
interpretation of the Code of Civil Procedure 1908.
3. In this search for truth, while placing these rules or in the case of our
country, the Code, in highest regard, on the role of a judge, we may benefi t
from Lord Denning's observations in Jones v. National Coal Board1 where
his Lordship remarked:
"The Judge's part in all this is to hearken to the evidence, only himself
asking questions of witnesses when it is necessary to clear up any point
that has been overlooked or left obscure; to see that the advocates
behave themselves seemly and keep to the rules laid down by law, to
exclude irrelevancies and discourage reputation, to make sure by wise
intervention that he follows, the points that the advocates are making
and asses their oral, and at the end to make up his mind where the truth
lies. If he goes beyond this he drops the mental of a judge and assumes
the robe of an advocate, and the change does not become his well".
1
 1957 2 QB 55
871
MOHAMMED ABDUL WAHID v. NILOFER & ANR.
THE CONFLICT
4. This appeal takes exception to a judgment delivered by the High
Court of Judicature at Bombay2 (Nagpur Bench) by which the Division
Bench had answered three questions framed by a Learned Single Judge of
that Court in view of the two allegedly confl icting decisions, viz. Vinayak
M Dessai v. Ulhas N. Naik and Ors.3 and Purushottam v. Gajanan4.
5. In Purushottam (supra) the Learned Single Judge had observed:
"8. Therefore, in my opinion, as long as, the judgment and order in
Writ Petition No. 869 of 1997 is in force and admittedly not challenged
by either of the parties, it was not open for the trial Court to allow
production of documents to confront the original defendant i.e. the
petitioner herein. It is diff erent matter if the production is allowed
for confronting the witnesses of the party. This Court is not inclined
to express any opinion about the said aspects and it is left open for
the parties to take appropriate proceeding in that respect. However, as
concluded by this Court in Writ Petition No. 869 of 1997, the defendant
i.e. petitioner herein cannot be confronted by the plaintiff by producing
documents during the course of cross-examination..."
(Emphasis Supplied)
5.1 In Vinayak M Dessai (supra) the Learned Single Judge observed :
"17. Evidence in terms of section 3 of the Evidence Act, 1872 means
and includes all statements which the Court permits or requires to
be made before it by witnesses in relation to matters of fact under
inquiry; such statements being called oral evidence and all documents
including electronic records produced for the inspection of the
Courts being the documentary evidence. Section 118 of the said Act
provides for the persons who may testify and reads that all persons
must be competent to testify unless the Court considers that they are
prevented from understanding the questions put to them, or from
giving rational answers to those questions, by tender years, extreme
2
 WP No. 7717/2019 & 6931/2019; (Hereinafter, the Impugned Judgment)
3
 2017 SCCOnLine Bom 8515
4
 2012 SCCOnLine Bom 1176
SUPREME COURT REPORTS
[2023] 15 S.C.R.
872
old age, disease, whether of body or mind, or any other cause of the
same kind. Section 120 provides that parties to the civil suit and
their wives or husbands or husband or wife of person under criminal
trial shall be competent witnesses while section 137 deals with the
examination in chief of a witness by the party who calls him for his
examination, the cross- examination being by the adverse party and
re-examination being subsequent to cross-examination by the party
who called him. However, a discussion of these relevant provisions
of the Evidence Act no doubt substantiate the contention of Shri
Pangam, learned Advocate for the Respondents, that if a party is
not a witness, it would lead to a disastrous interpretation and even
to the extent that section 137 of the Evidence Act may not apply
to a party and which could defeat the purpose of examination
and cross-examination. Nonetheless, the discussion on the point
is purely academic looking to the law on the point namely Order
VII, Rule 14, Order VIII, Rule 1 and Order XIII, Rule 1 of the
Civil Procedure Code. Besides, if an interpretation as canvassed
by Shri Pangam is accepted, the provisions of Order VII, Order
VIII and Order XIII would be rendered nugatory and as observed
in Laxmikant Sinai Lotlekar (supra). The learned trial Court
therefore was in jurisdictional error to disallow the objections
raised by the petitioner-plaintiff contrary to the mandate of Order
VIII, Rule 1 and Order XIII, Rule 1(3)(a) of the Civil Procedure
Code. The Respondents had to follow the mandate as contained
in Order VIII, Rule 1 of the Civil Procedure Code and could
not seek to produce such documents directly during the crossexamination of the plaintiff which it had to otherwise rely upon
in a list of documents as required by law. The learned trial Court
therefore committed a jurisdictional error and therefore the impugned
Order calls for an interference."
(Emphasis Supplied)
5.2 Finding there to be an apparent confl ict between the above-stated
two judgments on the issue of the diff erence, if any, between the party to
a suit and a witness in a suit on the one hand and, also with respect to
when it may be permissible to produce documents directly at the stage of
873
the cross-examination vis a vis another judgment of a co-ordinate bench in
Upper India Couper Paper Mills Co. Ltd. v. M/s Mangaldas and Sons5,
the Learned Single Judge observed as under:
"9. A perusal of the above quoted portion of the judgment in the
case of Vinayak M. Dessai (supra) shows that observation was made
to the eff ect that if a party was not to be a witness it would lead to
a disastrous interpretation to the extent that even Section 137 of the
Evidence Act, 1872, may not apply to a party, which could defeat the
purpose of examination and cross-examination. This observation is
directly contrary to the observations made in the above quoted portion
of the judgment of a learned single Judge of this Court in the case
Purshottam s/o Shankar Ghodegaonkar (supra), wherein it has been
categorically laid down that the party to a suit cannot be equated with
a witness and cannot be confronted with documents by casting surprise
upon him, particularly when the documents were not fi led along with
the list of documents. Thus, there is an obvious cleavage of views in
the aforesaid two judgments of learned single Judges of this Court on
the said issue i.e. whether a "party" is also a "witness".
...
17. As regards the other issue that arises for consideration,
there appears to be direct confl ict in the observations made in
the above-quoted portions of the judgments of the learned single
Judges in the cases of Purshottam s/o Shankar Ghodegaonkar
(supra) and Vinayak M. Dessai (supra), on the one hand and those
made by the learned single Judge in the case of Upper India Couper
Paper Mills Co. Ltd. (supra). While in the judgments in the cases
of Purshottam s/o Shankar Ghodegaonkar (supra) and Vinayak
M. Dessai (supra), the learned single judges of this Court have
laid down that documents cannot be produced directly at the stage
of cross-examination for confronting a witness so as to spring a
surprise upon him / her, in the case of Upper India Couper Paper
Mills Co. Ltd. (supra), the learned single Judge has held that the
words 'nothing in this rule' used in Order VIII Rule 1-A of the
5
 2004 SCC Online Bom 716
MOHAMMED ABDUL WAHID v. NILOFER & ANR.
SUPREME COURT REPORTS
[2023] 15 S.C.R.
874
CPC demonstrate that a document can be produced directly at
the stage of cross-examination and that there was no necessity of
furnishing such document in advance to the witness, to ensure
potency and eff ectiveness of cross-examination.
18. Having perused the above-quoted provision of Order VII
Rule 14, Order VIII Rule 1-A(4) and Order XIII Rule 1(3) of the CPC,
in my opinion, the use of the words nothing in this rule / sub-rule',
indicates that documents can certainly be produced directly at the stage
of cross-examination of a party or a witness so as to confront him/
her and that this would be necessary for eff ective cross-examination
of the party or witness. But, the observations made by learned single
Judges in the cases of Purshottam s/o Shankar Ghodegaonkar (supra)
and Vinayak M. Dessai (supra), appear to be holding a contrary view
and, therefore, there appears to be confl ict of opinions with reference
to the said issue also."
(Emphasis Supplied)
5.3 Thence, the judge framed three questions and referred the same
to be answered. The questions and their respective conclusions arrived at
by the learned Division Bench, subject matter of the present appeal are
extracted as under:-
"40. We, therefore answer the questions under reference as under:-
1.
Whether a party to a suit i.e.
plaintiff /or defendant is also
a witness and the provisions
of Order VII, Rule 14, Order
VIII, Rule 1-A(4)(a) and
Order XIII, Rule 1(3)(a) of the
Civil Procedure Code need
to be interpreted and applied
by equating "party" with a
"witness"
A party to a suit (plaintiff /defendant)
cannot be equated with a witness.
The provisions of Order VII, Rule
14(4), Order VIII, Rule 1-A(4) which
includes Rule 1-A(4)(a) and Order
XIII, Rule 1(3) which includes Rule
1(3)(a) of Civil Procedure Code are
not applicable to a party, who enters
the witness box to tender evidence
in his own cause. The provisions are
applicable to a witness alone.
875
MOHAMMED ABDUL WAHID v. NILOFER & ANR.
2.
Whether documents can
be directly produced at the
stage of cross-examination
of a party and/or a witness
to confront him/her without
seeking any prior leave of the
Court under Order VII, Rule
14(4), Order VIII, Rules 1(A)
(4)(a) and Order XIII, Rule
1(3)(a) of the Civil Procedure
Code?
Documents can be directly produced
at the stage of cross-examination
of a witness, (who is not a party to
the suit), to confront the witness
for refreshing his memory, under
Order VII, Rule 14(4); Order VIII,
Rule 1-A(4) and Order XIII, Rule
3 of Civil Procedure Code without
seeking prior leave of the Court.
3.
Whether the observations
made in the judgment in
the cases of Purushottam
s/o Shankar Ghodgaonkar
(supra) and Vinayak M.
Dessai (supra), to the eff ect
that permitting production
of documents directly at the
stage of cross-examination
of a witness and/or a party
to a suit would amount to
springing a surprise and
hence, it is impermissible,
are correct in the light of the
plain reading of the aforesaid
provisions and if accepted it
would lead to whittling down
the effectiveness of crossexamination of a witness and/
or a party?
Since we have held that a party
cannot be equated with a witness in
the matter of applying the provisions
of VII, Rule 14(4); Order VIII, Rule
1-A(4) and Order XIII, Rule 3 of Civil
Procedure Code, the observations
made in Purushottam s/o Shankar
Ghodgaonkar (supra) and Vinayak M.
Dessai (supra), are correct and would
not lead to whittling down the eff ect
of cross-examination of a witness.
Even if the witness was a party
to the suit, what has been held
in Purushottam s/o Shankar
Ghodgaonkar (supra) and Vinayak
M. Dessai (supra) would equally
hold good.
SNAPSHOT OF THE HIGH COURT'S REASONING
6. The High Court delivered a detailed judgment running into more
than sixty pages. To reach the above-stated conclusion, the reasoning adopted
by the Court was:-
SUPREME COURT REPORTS
[2023] 15 S.C.R.
876
6.1. For Question 1- Diff erences between a party to a suit and a
witness have been identifi ed, to hold that the Civil Procedure Code6
uses the expressions 'party' and 'witnesses' "in contradistinction to each
other." Further, it was observed that the role of a witness is separate and
distinct to a party to a suit. It was observed that merely because Order
XVI Rule 21 states that the Rules relating to witnesses would also apply
to parties summoned does not equate the two. Referring to Section 137
of the Indian Evidence Act, 1872, it is observed that the phrase 'by the
party who calls him' clearly indicates that under this Section the person
called is other than the party to the case. It is thereafter held that a plain
reading of the statute certifi es that a party cannot be equated to a witness
as their characters are diff erent.
6.2 For Question 2 - Specifi c use of the phrase 'defendant's witness'
and 'plaintiff 's witness' means persons other than those party to the suit,
and therefore, no specifi c leave would be required from the Court to
confront such person with a document during cross-examination as this
would result in the element of surprise being extinguished. Considering
the legislative intent of Order VII Rule 14 Sub-Rule (4), Order VIII
Rule 1-A(4)(a) and Order XIII Rule 1(3) of C.P.C. as well as others, it
was observed that the legislature has created an exception towards the
documents being produced for cross-examination of witnesses of the
other party to allow confrontation of witnesses by catching such person
"unawares" in order to "bring out the truth on record". This distinction
is "conscious, deliberate and intentional", more so evident from the fact
that this exception appears thrice in the Code.
6.3 For Question 3 - In both Vinayak M Dessai and Purushottam
(supra) a situation where a document was sought to be produced at the time
of cross-examination of a party, who was a witness in his own case, was
considered and not during the cross-examination of a witness either called
or summoned by the parties. This is why the production of documents
at this stage of cross-examination was held to be impermissible as that
would amount to a surprise which is impermissible under the provisions
of the Code. Therefore, both decisions lay down the correct view in law.
6
 Hereinafter, C.P.C
877
MOHAMMED ABDUL WAHID v. NILOFER & ANR.
7. In the above backdrop, the questions we have been called upon to
adjudicate on are:-
a) Whether under the Code of Civil Procedure, there is envisaged, a
diff erence between a party to a suit and a witness in a suit? In other
words, does the phrase plaintiff 's/ defendant's witness exclude the
plaintiff or defendant themselves, when they appear as witnesses
in their own cause?
b) Whether, under law, and more specifi cally, Order VII Rule 14; Order
VIII Rule 1-A; Order XIII Rule 1 etc, enjoin 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(s) plaintiff /
defendant's witness or witnesses of the other party, when cross
examining the opposite party?
SUBMISSIONS OF THE PARTIES
8. Mr. Huzefa Ahmadi, learned senior counsel appearing for the
petitioner made the following submissions:-
(i) The conclusion reached by the High Court is in contravention of
various provisions of the CPC such as Order VII Rule 14 (4), Order
VI Rule 21, Order VIII Rule 1(A) (4) (a) (b), etc. per illustration it
is submitted that sub-Rule of Rule 14 states that its provisions shall
not apply to cross-examination of plaintiff 's witnesses (documents
produced therefor) or those produced to refresh a witnesses memory.
The legislature has therefore carved out a deliberate exception.
(ii) The expression "plaintiff's witnesses" has not been used to
exclude the plaintiff from this rule and is instead intended to apply to
all witnesses introduced at the instance of the petitioner which may
include himself.
(iii) The judgment impugned herein, it is submitted erroneously states
that in teeth of sub-rule (1) to (3), all documents as opposed to only
those relied on in the plaint, shall be prohibited from being used in
the cross-examination unless fi led earlier.
(iv) Further, reference is made to Order VIII Rule 1 which is the general
rule of production of documents and the exception carved there under
SUPREME COURT REPORTS
[2023] 15 S.C.R.
878
in sub rule 3 which states that the rule of prior production shall not
apply to documents produced for the above two instances.
(v) Order VI Rule 21 negates the reasoning of the High Court under
which it has adopted a distinction between a party and a witness.
(vi) Such a distinction also falls foul of substantive law i.e., Indian
Evidence Act, 1872 which makes no distinction between a party taking
on the role of a witness and a witness simpliciter. Reference is made
to Sections 120, 137 and 155-160.
(vii) The consequence of the principle laid down by the High Court
would be to extinguish the possibility of eff ective cross-examination as
it takes away the ability to surprise or confront a witness in the stand
and it instead amounts to forcing parties to disclose their arguments,
defenses and evidence entirely in the pleadings which may, in turn,
go against the fundamental rule of pleadings which is to stipulate only
material facts therein.
In furtherance of the above submissions, reference is made to judgments
passed by the High Courts of Madras, Gujarat, Kerala, Delhi and Bombay.
9. Learned counsel Dr. R.S. Sundaram, appearing for Respondent No.1
made the following submissions: -
(i) Orders I to XX of the CPC have defi ned a party in specifi c terms
as plaintiff and defendant. A witness, in distinction, is for supporting
and/or proving a particular plea set out by the parties.
(ii) The phrase "insofar as applicable" as it appears in Order XVI Rule
21 regulates the conduct of a party when he testifi es as a witness. This
phrase when construed in the light cast by other provisions of the
Code sets out a clear distinction between the parties and a witness.
Reference is made to Order VII Rule 14 (4), Order 8 Rule 1(A), (4)
(a) and Order XIII Rule 1 (3).
(iii) It is submitted that Order XIII Rule 1(3) is clear and poses
no ambiguity and does not require interpretation as argued by the
appellant. The clause suggests that the document can be produced
and put to a witness to test its veracity and the words can in no way
be suggested to include the parties to the suit.
879
MOHAMMED ABDUL WAHID v. NILOFER & ANR.
(iv) The element of surprise as against a party being cross-examined, is
absent under the Code. Various provisions mandate that any documents
on which the suit relies or the defense depends be fi led at the fi rst
instance. Reference is made to Order VI Rule 9 which requires that
contents of all documents produced be material and be stated in the
pleadings, explicitly thereby negating the elements of surprise.
(v) The expressions "plaintiff 's witness and defendant's witness" are
unambiguous and therefore the literal meaning, as is apparent, must
be given to them.
(vi) Having considered the various provisions mentioned above, the
Division Bench of the High Court has correctly applied the principles
of interpretation to answer the three questions framed by the referring
court.
THE OPINION OF THE COURT
10. A party to the suit is one on whose behalf or against whom a
proceeding in a court has been fi led. A 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. Neither the phrase 'party to the
suit' nor 'witness' is defi ned under the CPC or any other statute on the
books. However on this issue, a Constitution Bench of this Court in State
of Bombay v. Kathi Kalu Oghad7 held as under-
"..."To be a witness" means imparting knowledge in respect of relevant
facts, by means of oral statements or statements in writing, by a person
who has personal knowledge of the facts to be communicated to a court
or to a person holding an enquiry or investigation. A person is said "to
be a witness" to a certain state of facts which has to be determined
by a court or authority authorised to come to a decision, by testifying
to what he has seen, or something he has heard which is capable of
being heard and is not hit by the rule excluding hearsay, or giving his
opinion, as an expert, in respect of matters in controversy..."
A 'witness' as defi ned by P. Ramanatha Aiyar's Advanced Law
Lexicon is as under:-
7
 AIR 1961 SC 1808
SUPREME COURT REPORTS
[2023] 15 S.C.R.
880
"One who sees, knows, or vouches for something (a witness to the
accident). (1) in person, (2) by oral or written deposition, or (3) by affi davit
(the prosecution called its next witness)". (Black, 7th Edn., 1999)
"The term 'witness'*, in its strict legal sense, means one who gives
evidence in a cause before a Court; and in its general sense includes all
persons from whose lips testimony is extracted to be used in any judicial
proceeding, and so includes deponents and affi ants as well as persons
delivering oral testimony before a Court or jury."
11. The High Court in its considered view stated that a party cannot
be equated to a witness. It is recorded in the impugned judgment that
various provisions of the CPC lend credence to the diff erence between a
party to the suit and a witness in a suit.
12. In advancing its arguments before this court, the Respondents
submitted that the phraseology of the Code, employing "the Plaintiff 's
witnesses" and "the Defendant's witnesses" suggests a clear diff erence
between the parties to the suit and the witness produced at their instance
- and would submit that the literal rule of interpretation, in the absence of
any ambiguity, would be what is required to be followed.
13. This understanding, in our view, implies that the law places a
party to a suit and a witness to a suit in watertight compartments and
that a plaintiff /defendant, even when testifying to their own cause are
not witnesses despite being in the witness box and being subject to the
same practices and procedures as any other witness before the court on
their behest.
14. This diff erentiation appears to be questionable. Reference may
be made to Section 120 of the Indian Evidence Act, 1872 which states
that parties to a civil suit shall be competent witnesses. It reads:-
"120. Parties to civil suit, and their wives or husbands.
Husband or wife of person under criminal trial. - In all civil
proceedings the parties to the suit, and the husband or wife of
any party to the suit, shall be competent witnesses. In criminal

*Corpus Juris Secundum: A Contemporary Statement of American Law as Derived
from Reported Cases and Legislation. West, 1994.
881
MOHAMMED ABDUL WAHID v. NILOFER & ANR.
proceedings against any person, the husband or wife of such person,
respectively, shall be a competent witness."
The word used is witnesses - which implies that a witness otherwise
produced as also the defendant or the plaintiff themselves, will stand on
the same footing when entering evidence for the consideration of the
court. The Code itself speaks to the eff ect that when a party to a suit
is to testify in court. Regard may be had to Order XVI Rule 21 which
reads as under:-
"21. Rules as to witnesses to apply to parties summoned.-Where
any party to a suit is required to give evidence or to produce a
document, the provisions as to witnesses shall apply to him so far
as they are applicable.
Further, Order XVI Rule 14, as extracted hereunder is taken note of.
"14. Court may of its own accord summon as witnesses strangers to
suit.-Subject to the provisions of this Code as to attendance and
appearance and to any law for the time being in force, where the
Court at any time thinks it necessary [to examine any person,
including a party to the suit] and not called as a witness by a
party to the suit, the Court may, of its own motion, cause such
person to be summoned as a witness to give evidence, or to produce
any document in his possession, on a day to be appointed, and
may examine him as a witness or require him to produce such
document."
(Emphasis Supplied)
In respect of the above provision, it is essential to notice that prior to
the amendment to the Code in the year 1976, this Section was applicable
to "any person other than a party to suit"8 the express exclusion has been
amended, to turn it into an explicit inclusion within the term 'witness'.
We may also refer to Order XVIII Rule 3A which states that when
a party to a suit wishes to appear as a witness, he is to do so prior to
other witnesses. The section reads:-
8
 Code Of Civil Procedure (Amendment) Act, 1976
SUPREME COURT REPORTS
[2023] 15 S.C.R.
882
3-A. Party to appear before other witnesses.-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.
The relevant principles as culled out by B.P Sinha, CJI (majority opinion)
in the above referenced decision of the Constitution Bench may also be
instructive in gaining an understanding of the ambit of a witness. In Para 16,
it was observed:-
"
....
(3) "To be a witness" is not equivalent to "furnishing evidence" in its
widest signifi cance; that is to say, as including not merely making of oral
or written statements but also production of documents or giving materials
which may be relevant at a trial to determine the guilt or innocence of
the accused.
(4) Giving thumb impressions or impressions of foot or palm or fi ngers or
specimen writings or showing parts of the body by way of identifi cation
are not included in the expression "to be a witness".
(5) "To be a witness" means imparting knowledge in respect of relevant
facts by an oral statement or a statement in writing, made or given in
court or otherwise.
(6) "To be a witness" in its ordinary grammatical sense means giving
oral testimony in court. Case law has gone beyond this strict literal
interpretation of the expression which may now bear a wider meaning,
namely, bearing testimony in court or out of court by a person accused of
an off ence, orally or in writing."
It is clear from the above discussion, that witnesses and parties to a suit,
for the purposes of adducing evidence, either documentary or oral are on the
same footing. The discussion as aforesaid, emphasises the lack of diff erentiation
between a party to suit acting as a witness and a witness simpliciter in the suit
proceedings. The presence of these provisions also begs the question that if the
legislature had the intent to diff erentiate between a party to a suit as a witness,
and a witness simpliciter, it would have done so, explicitly.
883
MOHAMMED ABDUL WAHID v. NILOFER & ANR.
On this we may only highlight what the High Court had to observe:
"Merely because Order XVI Rule 21 provides that the Rules as
to witnesses are to apply to parties summoned, that would not
mean that the party is being equated with a witness. The Rule
only applies for regulating the conduct of a party when he enters
the witness box in his own cause, otherwise in absence of such
a provision, there would be a void and the conduct of a party
entering the witness box in his own cause, would go unregulated.
This is further substantiated from the use of the expression "in so
far as they are applicable" occurring in Rule 21 of Order XVI."
A simple brushing off by saying that "merely because" one
provision mentions them to be performing similar functions, they
are not to be equated, cannot be allowed. No proper reason is
forthcoming from a perusal of the extracted portion or otherwise for
the differentiation which is between a witness in the witness box and
the conduct of a party appearing as a witness in the witness box. In
our considered view, this distinction does not rest on firm ground. This
is so because the function performed by either a witness or a party to
a suit when in the witness box is the same. The phrase "so far as it is
applicable" in Order XVI Rule 21 does not suggest a difference in the
function performed.
15. We may next consider the reliance in the impugned judgment,
on certain provisions of the Indian Evidence Act- particularly 137138,139, 154 and 155. For ready reference, the provisions are extracted
as under:
Section 137
Examination-in-chief. -- The examination of witness by the party
who calls him shall be called his examination-in-chief.
Cross-examination. -- The examination of a witness by the
adverse party shall be called his cross-examination.
Re-examination. --The examination of a witness, subsequent to
the cross-examination by the party who called him, shall be called
his re-examination.
SUPREME COURT REPORTS
[2023] 15 S.C.R.
884
Section 138
Order of examinations. -- Witnesses shall be fi rst examined-in-chief,
then (if the adverse party so desires) cross-examined, then (if the party
calling him so desires) re-examined. The examination and crossexamination must relate to relevant facts, but the cross-examination
need not be confi ned to the facts to which the witness testifi ed on his
examination-in-chief.
Direction of re-examination. -- The re-examination shall be directed to
the explanation of matters referred to in cross-examination; and, if new
matter is, by permission of the Court, introduced in re-examination,
the adverse party may further cross-examine upon that matter.
Section 139
Cross-examination of person called to produce a document. -- A person
summoned to produce a document does not become a witness by the
mere fact that he produces it, and cannot be cross-examined unless
and until he is called as a witness.
Section 154
Question by party to his own witness. --
1 [(1)] The Court may, in its discretion, permit the person who calls
a witness to put any questions to him which might be put in crossexamination by the adverse party.
2 [(2) Nothing in this section shall disentitle the person so permitted
under sub-section (1), to rely on any part of the evidence of such
witness.]
Section 155
Impeaching credit of witness.--The credit of a witness may be
impeached in the following ways by the adverse party, or, with the
consent of the Court, by the party who calls him:--
(1) By the evidence of persons who testify that they, from their
knowledge of the witness, believe him to be unworthy of credit;
(2) By proof that the witness has been bribed, or has 1 [accepted] the
885
MOHAMMED ABDUL WAHID v. NILOFER & ANR.
off er of a bribe, or has received any other corrupt inducement to
give his evidence;
(3) By proof of former statements inconsistent with any part of his
evidence which is liable to be contradicted;
* * * * *
Explanation. -- A witness declaring another witness to be unworthy
of credit may not, upon his examination-in-chief, give reasons for
his belief, but he may be asked his reasons in cross-examination, and
the answers which he gives cannot be contradicted, though, if they
are false, he may afterwards be charged with giving false evidence.
16. The thrust of the reliance was that this Act by the use of
the phrase 'by the parties who calls him' in the extracted provision,
recognizes the diff erence between a party to a suit and a witness called
on to testify by a party. This distinction again, on the face of it, appears
misconceived. It is not doubted that such a phrase or other similar phrases
have been employed in these provisions, however, if the holding of the
High Court is given an imprimatur, it would cause an apparent confl ict
between provisions of the very same Act i.e., the sections reproduced
immediately hereinabove vis a vis Section 120, which, as hitherto
reproduced states that, a party to a suit shall be, amongst others, a
competent witness. It may also be observed that nowhere in the Evidence
Act has the party been precluded from presenting himself as a witness,
and therefore this diff erentiation based only on the meaning as it appears,
cannot be countenanced.