'surprise exhibit/doc' during cross-exam!! please advise!!
Damayanti
(Querist) 19 November 2013
This query is : Resolved
My question is
What is correct/settled position of law as to ‘introducing documents/exhibits while cross examining the opposite side’s witness (either the opposite party to suit or other witnesses of opposite side) ?
My belief is that ONLY the Respondent/Defendent (against whom the liability is alleged) in any original trial are protected from unfair 'surprises' (new documents/exhibits during cross) ................ BUT plaintiffs are NOT protected against any surprises, as plaintiffs are supposed to be aware of "facts of case and subject matter" and are expected "not to be surprised about their own grievances/contentions (alleged rights accrued).
The situation is as follows:
Plaintiff's evidence stage is going on …
Plaintiff has given Exam in chief.
Now, the current status is as follows:
§ Respondent is taking plaintiff's cross exam/confronting the Plaintiff in cross (i.e. plaintiff is being subjected to cross exam)
§ Respondent has a surprise document to expose 'vexacity of plaintiff'!!
§ I got only one case law so far of BOM HC (2011) which suggests 'plaintiff's mischief can be exposed' and there is NO need to publish ‘surprise’ document before hand else the plaintiff gets a clue as to what is comming!!!!
1. So Order 7 R 14, Order 8 R 1-A and Order 13 R 1, read together an exception is carved like Respondent is NOT using the abovesaid ‘surprise’ doc to support/prove Respondent’s plea but to demolish/disprove plaintiff's plea!!! and thus/hence there is no need to give notice /list of docs while filing WS vide Order 8 Rule 1-A, else the surprise element in cross examination would vanish. And it is as good as giving a list of 'likely questions in cross' in advance!!!!)
But in support of above I request some more legal expert opinion, and some more guidance from experts, and also SC/ BOM HC cases laws.
I have a few genuine doubts as well!!! as follows. Please comment on those. thanks in advance.
In regards to production of documents/list etc CPC provisions as ….
In Order 7 Rule 14, wording is as ‘…… plaintiff’s witnesses …….’
In Order 8 Rule 1-A, wording ALSO is ‘…… plaintiff’s witnesses …….’
(Both are referring to plaintiff’s witnesses)
In Order 13 Rule 1, wording is as ‘……witnesses of the other party ....’
(my question here is … what about ‘defendant’s witnesses’??? I thought initially there is a printing mistake in CPC bare act that I have, but it is not!!!!)
Thus, the Respondent wants to 'disprove' the plaintiff's version of facts and expose vexacity/mischief!
There is no such burden upon respondent, but respondent taking onus to do so. if plaintiff's version of 'facts' remain 'unproved' still it is sufficient.
Vide WS, the Respondent has not only explicitly denied "plaintiff's version of facts/incident" but also alleged a new "respondent's version of same facts/incidents" etc Whether Respondent's version of facts get proved or not is not a matter of concern (as there is no counter claim by respondent), if plaintiff's version of alleged facts get demolished, then there remains nothing in the case!
Please clarify my doubts as follows (I am confused after reading those case laws):
There is another BOM HC case law which says (as to O7 R14, O8 R 1-A & O13 R1):
“ …. there is distinction in the term witness and a party to the suit …”
“The party to the suit cannot be equated with the witness and cannot be confronted with a document by casting surprise upon him, particularly when the documents were not filed by the plaintiff along with the list of documents on which he is going to rely upon.”
Thanks
R.K Nanda
(Expert) 19 November 2013
consult lawyer personally.
Damayanti
(Querist) 19 November 2013
Any other advise from experts
Thanks
Damayanti
(Querist) 20 November 2013
I did ask a lawyer,
now I seek the opinions from you all experts on this forum
V R SHROFF
(Expert) 20 November 2013
PLAINTIFF CANNOT PRODUCE NEW DOC
COURT LEAVE NECESSARY to convince, he obtn later on.
Damayanti
(Querist) 20 November 2013
Thanks Shroff Sir,
There is indeed No doubt that plaintiff CAN NOT produce any new doc without leave of court if petitioner wants that doc to foster his allegations, and hence plaintiff is obligated first to address opponent's objections and also convince court or else doc won't get admitted in evidence.
Rather, both side have to adhere to same rule if their objective of 'introducing new doc' is solely to "support their claim/defense" respectively.
My Q was about Respondent and about impeachment while taking cross exam ('proving one's own allegations/side' is different from 'disproving/impeaching opponent's side/allegation').
Context of my Question is: - The Respondent is taking cross of petitioner and trying to 'impeach' petitioner's credibility.
Respondent's 'evidence stage' is not even arrived at. Petitioner's 'evidence stage' is not closed/it is just begun.
Please advise.
Thyagarajan
(Expert) 20 November 2013
Witness may not know what documents were filed by petitioner. It is for the defendant's councilor to to raise objection and definitely the court will sustain the objection.
Damayanti
(Querist) 20 November 2013
OK.
I am NOT asking 'whether plaintiff can introduce a new doc or not'
Can Respondent 'introduce a new doc' as above said at the time of 'cross exam of the petitioner who is standing is witness box'?
Thyagarajan
(Expert) 21 November 2013
Respondent can file an affidavit enclosing the document as addition to type set of papers. it will be marked as addition to documents filed earlier.
But the process may attract a counter from plaintiff.
Thus the process of taking witness statements may get prolonged.
