MOHAMMED ABDUL WAHID versus NILOFER & ANR

Citation: [2023] 15 S.C.R. 866 · Decided: 14-12-2023 · Supreme Court of India · Bench: BHUSHAN RAMKRISHNA GAVAI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

[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
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