TMI Blog2009 (11) TMI 1030X X X X Extracts X X X X X X X X Extracts X X X X ..... then barred from treating the document as own document and proving the same? Since I am unable to find any judgment completely considering the aspects and further since in my opinion these questions plague the courts on a daily basis, it is deemed appropriate to answer the same. 2. This petition under Article 227 of the Constitution of India is preferred by the defendant in the suit before the Trial Court and against the order dated 20th October, 2008 dismissing the application of the petitioner/defendant under Section 45 of the Indian Evidence Act. 3. The respondent/plaintiff instituted the suit from which this petition arises against the petitioner/defendant for recovery of money. It is inter alia the case of the respondent/plaintiff that he is the owner of certain land which had been acquired from the predecessor of the petitioner/defendant; that a notification for acquisition of the said land was issued; that he applied for compensation for such acquisition; however the petitioner/defendant filed objections against the release of compensation to the respondent/plaintiff and which objections were subsequently withdrawn by the petitioner/defendant; that owing to the object ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the respondent/plaintiff, at the time when the said document was confronted to the respondent/plaintiff had also raised objection as to the production, admissibility and mode of proof of the said document and the document was taken on record subject to the objections of the respondent/plaintiff. The Trial Court thus held that no case for comparing the handwriting on the said document with the admitted handwriting of the respondent/plaintiff arises. 7. This court while issuing notice of this petition held that the Trial Court before considering the application under Section 45 of the Evidence Act, should have first decided whether the document could be taken on record or not. Notice of the petition was issued to this limited extent. 8. Order 7 Rule 14(4), Order 8 Rule 1(A)(4), as well as Order 13 Rule 1(3) provide that the provisions requiring parties to file documents along with their pleadings and/or before the settlement of issues do not apply to documents produced for the cross examination of the witnesses of the other party. To the same effect, Section 145 of the Evidence Act also permits documents to be put to the witnesses, though it does not provide whether such doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he adversary, the adversary may come prepared with his replies thereto. On the contrary, if permitted to show/produce the document owing to element of surprise, the adversary or witness, may blurt out the truth. Once it is held that a litigant is entitled to such right, in my view it would be too harsh to make the same subject to the condition that the litigant would thereafter be deprived of the right to prove the said documents himself. Thus, if the witness to whom the document is put in cross examination fails to admit the document, the party so putting the document, in its own evidence would be entitled to prove the same. However, the same should not be understood as laying down that such party for the said reason and to prove the said document would be entitled to lead evidence which otherwise it is not entitled to as per scheme of CPC and evidence law. For instance, if the document is shown by the defendant to the plaintiff's witness and the plaintiff's witness denies the same, the defendant can prove the document in his own evidence. Conversely, if the plaintiff puts the document to the defendant's witness and the defendant's witness denies the same, the plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgument of the counsel for the plaintiff was that allowing the said application would tantamount to permitting the defendant to prove the documents in his defence and which right he had lost. It was held that what a party is prohibited in law from doing directly, it cannot achieve the same by an indirect method. However, this Court while holding so also observed that the handwriting could be compared on documents which form part of the record and accepted the contention of the counsel for the plaintiff that the documents put in cross examination and denied by the plaintiff did not form part of the record. Though, the said observation of another Single Judge of this Court is contrary to the conclusion reached by me above, but I have not deemed it necessary to refer to the matter to a larger bench because the Court in that case was swayed by the defence of the defendants having been struck off. (ii) Bondar Singh v. Nihal Singh AIR 2003 SC 1905. This judgment was cited by the counsel for the respondent/plaintiff in support of the proposition that the document Ex.PW1/D1 in the present case was not pleaded by the petitioner/defendant in his evidence and for this reason also no evid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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