MOHAMMED ABDUL WAHIDversusNILOFER & ANR

                 [2023] 15 S.C.R. 866 : 2023 INSC 1075



                            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 difference 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 – Difference 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 difference 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 difference in the function performed – Provisions
of the Code as also the Evidence Act do not differentiate 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]


                                    866
      MOHAMMED ABDUL WAHID v. NILOFER & ANR.                               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 effectively
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 effective
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 fly 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 effect 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]
868         SUPREME COURT REPORTS                      [2023] 15 S.C.R.


     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.
     MOHAMMED ABDUL WAHID v. NILOFER & ANR.                              869


     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:
870            SUPREME COURT REPORTS                         [2023] 15 S.C.R.


       (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 financial 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 benefit
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
     MOHAMMED ABDUL WAHID v. NILOFER & ANR.                              871


     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 conflicting 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 different 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
872          SUPREME COURT REPORTS                       [2023] 15 S.C.R.


      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 cross-
      examination 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 conflict between the above-stated
two judgments on the issue of the difference, 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
     MOHAMMED ABDUL WAHID v. NILOFER & ANR.                             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 Sons 5,
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 effect 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 filed 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 conflict 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
874          SUPREME COURT REPORTS                          [2023] 15 S.C.R.


      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 effectiveness 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 effective 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 conflict 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.    A party to a suit (plaintiff/defendant)
      plaintiff/or defendant is also     cannot be equated with a witness.
      a witness and the provisions      The provisions of Order VII, Rule
      of Order VII, Rule 14, Order      14(4), Order VIII, Rule 1-A(4) which
      VIII, Rule 1-A(4)(a) and          includes Rule 1-A(4)(a) and Order
      Order XIII, Rule 1(3)(a) of the   XIII, Rule 1(3) which includes Rule
      Civil Procedure Code need         1(3)(a) of Civil Procedure Code are
      to be interpreted and applied     not applicable to a party, who enters
      by equating “party” with a        the witness box to tender evidence
      “witness”                         in his own cause. The provisions are
                                        applicable to a witness alone.
      MOHAMMED ABDUL WAHID v. NILOFER & ANR.                               875



 2.   Whether documents can             Documents can be directly produced
      be directly produced at the       at the stage of cross-examination
      stage of cross-examination        of a witness, (who is not a party to
      of a party and/or a witness       the suit), to confront the witness
      to confront him/her without       for refreshing his memory, under
      seeking any prior leave of the    Order VII, Rule 14(4); Order VIII,
      Court under Order VII, Rule       Rule 1-A(4) and Order XIII, Rule
      14(4), Order VIII, Rules 1(A)     3 of Civil Procedure Code without
      (4)(a) and Order XIII, Rule       seeking prior leave of the Court.
      1(3)(a) of the Civil Procedure
      Code?
 3.   Whether the observations          Since we have held that a party
      made in the judgment in           cannot be equated with a witness in
      the cases of Purushottam          the matter of applying the provisions
      s/o Shankar Ghodgaonkar           of VII, Rule 14(4); Order VIII, Rule
      (supra) and Vinayak M.            1-A(4) and Order XIII, Rule 3 of Civil
      Dessai (supra), to the effect      Procedure Code, the observations
      that permitting production        made in Purushottam s/o Shankar
      of documents directly at the      Ghodgaonkar (supra) and Vinayak M.
      stage of cross-examination        Dessai (supra), are correct and would
      of a witness and/or a party       not lead to whittling down the effect
      to a suit would amount to         of cross-examination of a witness.
      springing a surprise and
                                        Even if the witness was a party
      hence, it is impermissible,
                                        to the suit, what has been held
      are correct in the light of the
                                        in Purushottam s/o Shankar
      plain reading of the aforesaid
                                        Ghodgaonkar (supra) and Vinayak
      provisions and if accepted it
                                        M. Dessai (supra) would equally
      would lead to whittling down
                                        hold good.
      the effectiveness of cross-
      examination of a witness and/
      or a party?
      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:-
876             SUPREME COURT REPORTS                      [2023] 15 S.C.R.


      6.1. For Question 1- Differences between a party to a suit and a
witness have been identified, 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 certifies that a party cannot be equated to a witness
as their characters are different.
      6.2 For Question 2 – Specific use of the phrase ‘defendant’s witness’
and ‘plaintiff’s witness’ means persons other than those party to the suit,
and therefore, no specific 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
     MOHAMMED ABDUL WAHID v. NILOFER & ANR.                               877


     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
        difference 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 specifically, 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 filed 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
878          SUPREME COURT REPORTS                         [2023] 15 S.C.R.


      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 effective 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 defined a party in specific 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 testifies 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.
     MOHAMMED ABDUL WAHID v. NILOFER & ANR.                              879


     (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 filed at the first
     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 filed. 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 defined 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 defined by P. Ramanatha Aiyar’s Advanced Law
     Lexicon is as under:-


7   AIR 1961 SC 1808
880            SUPREME COURT REPORTS                          [2023] 15 S.C.R.


      “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 affidavit
(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 affiants 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 difference 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 difference
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 differentiation 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.
      MOHAMMED ABDUL WAHID v. NILOFER & ANR.                              881


     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 effect 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
882           SUPREME COURT REPORTS                           [2023] 15 S.C.R.


      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 significance; 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 fingers or
      specimen writings or showing parts of the body by way of identification
      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 offence, 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 differentiation
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 differentiate between a party to a suit as a witness,
and a witness simpliciter, it would have done so, explicitly.
     MOHAMMED ABDUL WAHID v. NILOFER & ANR.                         883


     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 137-
138,139, 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.
884           SUPREME COURT REPORTS                         [2023] 15 S.C.R.


      Section 138
      Order of examinations. –– Witnesses shall be first 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 cross-
      examination must relate to relevant facts, but the cross-examination
      need not be confined to the facts to which the witness testified 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 cross-
      examination 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
     MOHAMMED ABDUL WAHID v. NILOFER & ANR.                             885


     offer 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 difference 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 conflict
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 differentiation based only on the meaning as it appears,
cannot be countenanced. A perusal of Sections 137,138 and 139, in our
considered view, does not favour the differences as pointed out in the
impugned judgement. Examination in chief, cross-examination and re-
examination are all facets of a trial which can be availed by a party or
the adversary, for both the party to a suit as a witness and also for other
witnesses called by the party. Therefore, this negates the interpretation
that “the party who calls him” suggests a difference between the party
as also the witness called by such party for the purposes of entering
evidence before the court.
     17. Having arrived at the conclusion as above, that the provisions of
the Code as also the Evidence Act do not differentiate between a party to
886            SUPREME COURT REPORTS                       [2023] 15 S.C.R.


the suit acting as a witness and a witness otherwise called by such a party
to testify, we may now consider the next question presented by this lis.
      18. While considering the legislative intent of Order VII Rule 14(4),
Order VIII Rule 1-A(4)(a) and Order XIII Rule 1(3), the High Court observed
that the production of documents relied on and/or “in the possession and
power of the parties” as being obligatory and noted that a failure to do
so, may in some cases be tantamount to fraud. Reference was made to
S.P. Chengivaraya Naidu v. Jagannath9 to substantiate the same. It was
observed that permitting a party to hold a document intentionally, for any
purpose whatsoever would nullify the requirement of a level playing field
in the litigation, but also undercut the said provisions because the language
is clear- mandating for the parties to produce documents, and whereas, the
exception- i.e., Order VIII Rule 1-A (4) and Order XIII Rule 1(3) applies
only to witnesses and not to parties. Thus concluding that the legislative
intent is clear and unambiguous, as evidenced by the same difference being
present three times.
      19. On this, it would be appropriate to extract the relevant provisions,
for ready reference.
       Order VII
       [14. Production of document on which plaintiff sues or relies.—
       (1) Where a plaintiff sues upon a document or relies upon document
       in his possession or power in support of his claim, he shall enter such
       documents in a list, and shall produce it in Court when the plaint is
       presented by him and shall, at the same time deliver the document and
       a copy thereof, to be filed with the plaint.
       (2) Where any such document is not in the possession or power of
       the plaintiff, he shall, wherever possible, state in whose possession
       or power it is.
       [(3) A document which ought to be produced in Court by the plaintiff
       when the plaint is presented, or to be entered in the list to be added
       or annexed to the plaint but is not produced or entered accordingly,


9     (1994) 1 SCC 1 (2-Judge Bench)
MOHAMMED ABDUL WAHID v. NILOFER & ANR.                                 887


shall not, without the leave of the Court, be received in evidence on
his behalf at the hearing of the suit.]
(4) Nothing in this rule shall apply to document produced for the cross-
examination of the plaintiffs witnesses, or handed over to a witness
merely to refresh his memory.]
Order VIII
      1-A. Duty of defendant to produce documents upon which
relief is claimed or relied upon by him.—(1) Where the defendant
bases his defence upon a document or relies upon any document in his
possession or power, in support of his defence or claim for set-off or
counter-claim, he shall enter such document in a list, and shall produce
it in Court when the written statement is presented by him and shall,
at the same time, deliver the document and a copy thereof, to be filed
with the written statement.
(2) Where any such document is not in the possession or power of
the defendant, he shall, wherever possible, state in whose possession
or power it is.
[(3) A document which ought to be produced in Court by the defendant
under this rule, but, is not so produced shall not, without the leave of the
Court, be received in evidence on his behalf at the hearing of the suit.]
(4) Nothing in this rule shall apply to documents—
(a) produced for the cross-examination of the plaintiff’s witnesses, or
(b) handed over to a witness merely to refresh his memory.]
Order XIII
1. Original documents to be produced at or before the settlement of
issues.—(1) The parties or their pleader shall produce on or before the
settlement of issues, all the documentary evidence in original where the
copies thereof have been filed along with plaint or written statement.
(2) The Court shall receive the documents so produced:
Provided that they are accompanied by an accurate list thereof prepared
in such form as the High Court directs.
888          SUPREME COURT REPORTS                       [2023] 15 S.C.R.


      (3) Nothing in sub-rule (1) shall apply to documents—
      (a) produced for the cross-examination of the witnesses of the
      other party; or
      (b) handed over to a witness merely to refresh his memory.
      20. The differentiation between the party to a suit and a witness,
as is made clear by our earlier discussion, is not something that gels
with the law. As has been hitherto observed, the term witness does
not exclude the party to the suit i.e., the Plaintiff or the Defendant,
themselves appearing before the court to enter evidence. As far as the
non-production of documents amounting to fraud, it may be true that
the non-production of documents on which the parties place reliance,
may hinder the progression of the suit- and in a given case, perhaps
may amount to fraud- but we do not comment on those possibilities,
if any. However, the intentional withholding of a document, in these
two situations- is completely different. One is the withholding of a
document upon which the case depends, or is essential for the lis to be
appropriately decided - and the other is solely for the purpose of effective
cross-examination. The two cannot be held to be at the same pedestal,
the latter most certainly not amounting to fraud.
      21. A perusal of the CPC otherwise as well supports this view, as
it does not, in any manner address a situation where a party to a suit is
to enter the witness box, and what the procedure may be, to be followed
for such an occurrence, setting this testimony apart from those rendered
by other witnesses.
      22. The argument that the literal interpretation of “the Plaintiff’s
witnesses” and “the Defendant’s witnesses” suggests a clear difference
between the parties to the suit and the witness produced at their instance
- has to be necessarily negated as a plaintiff or a defendant at their own
behest may enter evidence in court- and so, to hold, as the judgement
impugned before us does, that it is permissible as according to Order
VIII Rule 1-A(3), to produce a document to confront or jog the memory
of a witness, but the same would not be permissible as applied to a party
to a suit, would create an artificial distinction, which otherwise does not
serve any purpose of law.
      MOHAMMED ABDUL WAHID v. NILOFER & ANR.                               889


      23. We notice that the Madras High Court in Miss T.M. Mohana v. V.
Kannan10 had in as far back as 1984, held that the production of documents
for the purpose of cross-examinations can be availed only for a witness of
a party and not the party themselves, is an untenable argument. Also, that
the “Plaintiff’s witnesses” would not only be witnesses for the plaintiff, but
also the plaintiff himself.
      24. This proposition was referred to and agreed upon by the Gujarat
High Court in Amit M. Pathakji, Sr. Manager (Mech.) & Anr v.
Bhavnaben Amitkumar Pathakji11 in the year 2007, which notably is after
the Code of Civil Procedure (Amendment) Act, 2002. This fact acquires
significance as the Division Bench in the Impugned Judgment differentiates
the judgment in T.M Mohana (supra) with the present-day Code as the
provision it speaks of is not to be found in the Code.
      25. In fact, if the literal interpretation as posited by the respondent
is accepted, the distinction created would lay waste to the law as framed-
giving rise to a difference not envisaged by the Code, while also indirectly
obliterating other well-recognized concepts of law such as that of an
interested witness (which is a recognized concept in civil suits as well12) for
one of the differences culled out, between a party to a suit and a witness- is
on the degree of interest in the outcome of the case, stating that a party is
obviously interested, while a witness is not.13
      26. To conclude the issue at hand- The freedom to produce documents
for either of the two purposes i.e. cross examination of witnesses and/or
refreshing the memory would serve its purposes for parties to the suit as
well. Additionally, being precluded from effectively putting questions to and
receiving answers from either party to a suit, with the aid of these documents
will put the other at risk of not being able to put forth the complete veracity
of their claim- thereby fatally compromising the said proceedings. Therefore,
the proposition that the law differentiates between a party to a suit and a
witness for the purposes of evidence is negated.



10   1984 SCC Online Mad 145
11   2007 SC OnLine Guj 78.
12   See Sadayappan v. State, (2019) 9 SCC 257 (2-Judge Bench)
13   Para 23 of the Impugned Judgment
890            SUPREME COURT REPORTS                            [2023] 15 S.C.R.


       27. In Purushottam (supra) the Learned Single Judge had observed
that it was not open for the trial court to allow the production of documents to
confront the party to the suit and it would be a different course if the person
being confronted was only a witness to the suit. While Vinayak Dessai
(supra) essentially agrees on this point, the difference arises with the latter
saying that a party and a witness can be equated for the purposes of the two
being on the same pedestal while entering evidence. Both the above-stated
judgments differ with Upper India Couper Paper Mills Co. Ltd. (supra)
which says that it is not obligatory to produce advanced copies of documents
sought to be introduced for the limited purpose of cross-examination.
      28. It is 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. We may refer to Ram Sarup Gupta v. Bishun
Narain Inter College14, wherein it was observed as follows:
       “6. ... It is well settled that in the absence of pleading, evidence, if any,
       produced by the parties cannot be considered. It is also equally settled
       that no party should be permitted to travel beyond its pleading and
       that all necessary and material facts should be pleaded by the party in
       support of the case set up by it. The object and purpose of pleading is
       to enable the adversary party to know the case it has to meet. To have
       a fair trial it is imperative that the party should settle the essential
       material facts so that the other party may not be taken by surprise.
       The pleadings however should receive a liberal construction; no
       pedantic approach should be adopted to defeat justice on hair-splitting
       technicalities. Sometimes, pleadings are expressed in words that may
       not expressly make out a case in accordance with a strict interpretation
       of the law. In such a case the court must ascertain the substance of the
       pleadings to determine the question. It is not desirable to place undue
       emphasis on form, instead, the substance of the pleadings should be
       considered. Whenever the question about lack of pleading is raised
       the enquiry should not be so much about the form of the pleadings;


14    (1987) 2 SCC 555 (2-Judge Bench)
      MOHAMMED ABDUL WAHID v. NILOFER & ANR.                               891


      instead, the court must find out whether in substance the parties knew
      the case and the issues upon which they went to trial. Once it is found
      that in spite of deficiency in the pleadings, parties knew the case and
      they proceeded to trial on those issues by producing evidence in that
      event it would not be open to a party to raise the question of absence
      of pleadings in appeal….”
    29. We may also refer to Udhav Singh v. Madhav Rao Scindia15,
wherein a bench of two learned judges observed:
      “25...If the plea or ground of defence “raises issues of fact not arising
      out of the plaint”, such plea or ground is likely to take the plaintiff by
      surprise, and is therefore required to be pleaded. If the plea or ground
      of defence raises an issue arising out of what is alleged or admitted in
      the plaint, or is otherwise apparent from the plaint, itself, no question
      of prejudice or surprise to the plaintiff arises. Nothing in the rule
      compels the defendant to plead such a ground, not debars him from
      setting it up at a later stage of the case, particularly when it does not
      depend on evidence but raises a pure question of law turning on a
      construction of the plaint.”
      30. A reading of the judgments above would imply that substance is
what the courts need to look into, and therefore, in reference to the production
of documents, in the considered view of this court, so long as the document
is produced for the limited purpose of effective 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 fly in the face of
this established proposition.
      31. Save and except the cross-examination part of a civil suit, at no
other point shall such confrontation be allowed, without such document
having accompanied the plaint or written statement filed before the court.
For this purpose, reference be made to Order VII Rule 14(4)(This Rule
speaks of the plaintiff necessarily listing in his plaint and, producing before
the court, the documents upon which they seek to place reliance, in support
of his claim. Sub-rule 4 exempts from this obligation documents produced


15   (1977) 1 SCC 511
892            SUPREME COURT REPORTS                        [2023] 15 S.C.R.


for the limited purpose of cross-examination or to jog the memory of a
witness), Order VIII Rule 1A(4)(a) (This Rule speaks of the defendant
necessarily listing in his Written Statement and, producing before the court
the documents upon which they seek to place reliance, in defense of his
claim for set-off or counterclaim. Sub-rule 4 exempts from this obligation
documents produced for the limited purpose of cross-examination or to jog
the memory of a witness) and Order XIII Rule 1(3) (This Rule speaks of
either party or their pleaders obligatorily producing, post the settlement of
issues in a Suit, the documentary evidence upon which reliance is placed.
Sub-rule 3 exempts from this obligation documents produced for the limited
purpose of cross-examination or to jog the memory of a witness), all three
of which, while dealing with the production of documents, by the plaintiff,
defendant and in general, respectively, exempt documents to be produced
for the limited purpose of cross-examination or jogging the memory of the
witness.
      32. In light of the above discussion, and the answer in the negative to
the first question before this court, meaning thereby that there is no difference
between a party to a suit as a witness and a witness simpliciter- the second
issue in this appeal, in view of the provisions noticed above, 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.
     33. The questions raised in the instant lis are answered in the above
terms. The appeal is allowed.
     34. In view of the discussion hereinabove, the judgment of the Division
Bench in WP No. 7717 of 2019 titled as Mohammed Abdul Wahid v. Smt.
Nilofer with WP No. 6931 of 2019 titled as Sau. Kantabai & Anr. v. Sudhir
& Ors dated 9th February 2021 by the Bombay High Court, is set aside.
      35. The original petition stands restored to the file of the High Court
for it to be decided on merits in accordance with the law as hereinabove
discussed.
      36. Interlocutory Applications, if any, stand disposed of. Parties to
bear respective costs.


Headnotes prepared by:                                           Appeal allowed.
Nidhi Jain