Bombay High Court: No Separate Application Needed to Produce Documents During Cross-Examination Order VIII Rule 1A CPC Exception Explained
EduLaw EditorialLandmark JudgementsCan a trial court refuse a party from confronting a witness with documents during cross-examination simply because those documents were not filed with the written statement? The Bombay High Court says no — and lays down why procedural gatekeeping must yield to the statutory right of effective cross-examination. Title: Bombay High Court Settles the Law: Documents Relevant to Pleadings Can Be Produced During Cross-Examination Without Prior Filing or Leave of Court Case Name: Jijabhau Dyaneshwar Temgire v. Gangaram Khandu Temgire & Ors. Case Number: Writ Petition No. 8080 of 2022 Court: High Court of Judicature at Bombay (Civil Appellate Jurisdiction) Judge: Hon'ble Ms. Justice Gauri Godse Judgment Date: 4 March 2026 Citation: 2026 LiveLaw (Bom) 100; 2026:BHC-AS:10404 ABSTRACT The production of documents during cross-examination in civil trials has been a contested procedural battleground in Indian litigation for decades. The question of whether a party can produce documents to confront an opposing party-witness, when such documents were not filed along with the written statement, sits at the intersection of procedural discipline and substantive fairness. In Jijabhau Dyaneshwar Temgire v. Gangaram Khandu Temgire & Ors. (Writ Petition No. 8080 of 2022), the Bombay High Court delivered a definitive ruling that resolves this tension. Justice Gauri Godse held that Order VIII Rule 1A(4) of the Code of Civil Procedure, 1908, read with Section 145 of the Indian Evidence Act, 1872 (corresponding to Section 148 of the Bharatiya Sakshya Adhiniyam, 2023 ), expressly permits a defendant to produce documents at the stage of cross-examination for the purpose of contradicting a witness, without filing a separate application and without obtaining prior leave of the court — provided the documents are not completely divorced from or foreign to the pleadings already on record. The judgment applies and reaffirms the ratio of the Supreme Court's landmark decision in Mohammed Abdul Wahid v. Nilofer & Anr. (2024) 2 SCC 144 , distinguishes earlier Bombay High Court decisions rendered under the unamended CPC, and restores the primacy of effective cross-examination as a tool of fair adjudication. TABLE OF CONTENTS Introduction and Statutory Context Factual Background and Procedural History Rival Contentions Before the High Court The Statutory Framework: Orders VII, VIII, XIII CPC and Section 145 Evidence Act The Court's Reasoning and Ratio Decidendi Treatment of Precedent: Mohammed Abdul Wahid and Earlier Bombay Decisions Practical Implications for Civil Litigation Practice Conclusion and Key Takeaways 1. INTRODUCTION AND STATUTORY CONTEXT Cross-examination is universally regarded as the most potent weapon in the armoury of a litigant for testing the truthfulness of a witness. It is the crucible in which the veracity of testimony is tested, contradictions are exposed, and the truth is ultimately distilled. The right to effective cross-examination is not merely a procedural courtesy; it is a fundamental component of the right to a fair trial. Yet this right is frequently curtailed by trial courts through an overly rigid application of the procedural requirements governing the production of documents under the Code of Civil Procedure, 1908 (CPC). The 2002 amendments to the CPC introduced stricter timelines for the production of documents — requiring parties to file all documents relied upon along with their pleadings — but crucially preserved statutory exceptions that permit production of documents at the stage of cross-examination. The present judgment by the Bombay High Court addresses the recurring conflict between these procedural requirements and the substantive right to effective confrontation of a witness during cross-examination. The core principle affirmed by this judgment is deceptively simple: if a document is sought to be used not as substantive evidence in a party's own case but as a tool for contradicting or confronting an opposing party-witness, and if the document is not foreign to the pleadings already on record, then no separate application is required, no prior filing is mandated, and no leave of the court is a prerequisite for its production. The statutory scheme itself carves out this exception, and the court's role is merely to verify that the document satisfies the touchstone of relevance under Section 145 of the Indian Evidence Act (now Section 148 of the Bharatiya Sakshya Adhiniyam, 2023 ). 2. FACTUAL BACKGROUND AND PROCEDURAL HISTORY The dispute arose from a civil suit filed by the respondent-plaintiffs (Gangaram Khandu Temgire and others) seeking cancellation of three sale deeds dated 3 April 2012 and a deed of rectification dated 10 April 2012. The plaintiffs alleged that the petitioner-defendant No. 1 (Jijabhau Dyaneshwar Temgire), acting as their constituted attorney under a power of attorney that had been cancelled, fraudulently executed these sale deeds in favour of defendant No. 2 without any consideration and without transferring possession. The plaintiffs also sought a permanent injunction restraining the defendants from creating any third-party interest in the suit property. Defendant No. 1 filed his written statement denying the allegations of fraud. Critically, he pleaded in paragraphs 22 and 24 of his written statement that the registered power of attorney was executed for consideration, and that an amount of Rs. 5 Lakhs was paid to plaintiff Nos. 1 and 2, with receipts being issued in the name of plaintiff No. 1. However, at the time of filing the written statement, the specific receipts evidencing these payments were not available with defendant No. 1, and their particulars were not pleaded. Subsequently, defendant No. 1 filed an application (Exhibit 113) seeking amendment of the written statement to incorporate the particulars of the cash vouchers and receipts. The trial court rejected this amendment application on the ground that the trial had already commenced. Thereafter, when the suit was posted for cross-examination of plaintiff No. 1, defendant No. 1 filed a further application (Exhibit 117) seeking to produce the receipts (listed at Exhibit 118) for the purpose of confronting plaintiff No. 1 during his cross-examination. The trial court — the 2nd Joint Civil Judge, Senior Division, Khed, Rajgurunagar — rejected this application by its order dated 8 December 2021, holding that since the documents had not been produced along with the written statement in compliance with Order VIII Rule 1A of the CPC, they could not be received in evidence at the stage of cross-examination. It is this order that was challenged before the Bombay High Court in the present writ petition. 3. RIVAL CONTENTIONS BEFORE THE HIGH COURT The arguments advanced by both sides encapsulate the central tension in this area of procedural law. Learned counsel for the petitioner-defendant relied heavily on the Supreme Court's decision in Mohammed Abdul Wahid v. Nilofer & Anr. (2024) 2 SCC 144 , arguing that since the written statement already contained pleadings regarding the payment of Rs. 5 Lakhs to the plaintiffs, the receipts evidencing such payment could not be said to be "foreign to the pleadings." Therefore, under the exceptions carved out by Orders VII, VIII, and XIII of the CPC and the principles enshrined in Section 145 of the Evidence Act , defendant No. 1 was entitled as of right to produce the receipts for confronting plaintiff No. 1 during cross-examination. Counsel further submitted that procedural rules are the handmaid of justice and cannot be applied with a hyper-technical approach to defeat the substantive right of effective cross-examination. The respondent-plaintiffs, on the other hand, mounted a spirited defence of the trial court's order. Their counsel relied on two decisions of the Bombay High Court — Laxmikant Sinal Lotlekar v. Raghuvir Sinal Lotlekar (1984 SCC OnLine Bom 228) and Rekha Nalavade v. The Municipal Commissioner of Greater Mumbai & Ors. (2025 SCC OnLine Bom 860) — to argue that documents falling within the scope of a party's own case, which were required to be produced with the written statement under Order VIII Rule 1A(1) , cannot be introduced through the backdoor of cross-examination. The plaintiffs' counsel contended that the 2002 amendments to the CPC had tightened the procedural discipline around document production, and that allowing the defendant to produce documents in cross-examination which he ought to have produced with his written statement would render the mandatory provisions of the amended CPC nugatory. He further argued that the Mohammed Wahid decision dealt with a different question — the equivalence of a party and a witness for the purpose of adducing evidence — and was not applicable to the facts of the present case. 4. THE STATUTORY FRAMEWORK: ORDERS VII, VIII, XIII CPC AND SECTION 145 EVIDENCE ACT Justice Gauri Godse undertook a meticulous examination of the statutory framework governing the production of documents in civil suits, which merits detailed analysis. The judgment traces the interplay between the procedural requirements of the CPC and the substantive provisions of the Evidence Act with precision. Order VII Rule 14 of the CPC requires the plaintiff to produce, at the time of filing the plaint, all documents relied upon by entering them in a list. Sub-rule (3) provides that documents not so produced can be received in evidence only with the leave of the court. However, sub-rule (4) carves out a critical exception: the requirement of production with the plaint and the necessity of court's leave do not apply to documents produced for the cross-examination of the plaintiff's witnesses or handed over to a witness merely to refresh his memory. Order VIII Rule 1A mirrors this structure for defendants. Sub-rule (1) requires the defendant to produce all documents relied upon along with the written statement. Sub-rule (3) permits reception of documents not so produced only with leave of the court. Sub-rule (4) — which is pivotal to this case — again carves out the same exception: the requirements of sub-rules (1) and (3) shall not apply to documents produced for the cross-examination of the plaintiff's witnesses or handed over to a witness merely to refresh his memory. Order XIII Rule 1 requires parties to produce original documents before the settlement of issues. Sub-rule (3) again provides the identical exception permitting production of documents for cross-examination of the witnesses of the other party or to refresh their memory. The substantive provision that governs the actual use of such documents during cross-examination is Section 145 of the Indian Evidence Act, 1872 (reproduced as Section 148 of the Bharatiya Sakshya Adhiniyam, 2023 without change). This section provides that a witness may be cross-examined as to previous statements made by him in writing or reduced into writing, relevant to matters in question, without such writing being shown to him or being proved; but if it is intended to contradict him by the writing, his attention must be called to those parts which are to be used for contradiction. The court held that Section 145 furnishes the substantive touchstone against which the procedural exception must be tested: the document must be relevant to the matters in question and must be a previous statement of the witness sought to be contradicted. 5. THE COURT'S REASONING AND RATIO DECIDENDI The central finding of Justice Gauri Godse's judgment rests on a clear distinction between the procedural law governing the timing of document production and the substantive law governing the right to effective cross-examination. The court held that the CPC is a procedural law governing the procedure to be followed in civil suits and does not deal with substantive evidence; whereas the Indian Evidence Act and the Bharatiya Sakshya Adhiniyam are substantive laws that deal with evidence and contain procedural aspects such as the order of examination of witnesses. The judgment reasons that the exceptions contained in Order VII Rule 14(4) , Order VIII Rule 1A(4) , and Order XIII Rule 1(3) are not accidental or residual provisions but are deliberately crafted statutory recognitions that the right to effective cross-examination cannot be held hostage to procedural timelines applicable to substantive evidence. When read harmoniously with Section 145 of the Evidence Act , these exceptions establish a self-contained code: a party is entitled to produce documents during cross-examination for the purpose of confronting or contradicting a witness, provided the documents are relevant to the matters in question and are not completely divorced from or foreign to the pleadings. No separate application is required. No leave of the court is a prerequisite. The court recording the evidence must simply permit such production on the touchstone of relevance under Section 145. In the present case, the court found that defendant No. 1's written statement contained specific pleadings regarding payment of Rs. 5 Lakhs to the plaintiffs with receipts being issued. The receipts sought to be produced were direct evidence of these very payments. They could not, by any stretch of reasoning, be characterised as "divorced from or foreign to the pleadings." The court concluded that the trial court's refusal to allow production was erroneous and amounted to an illegal curtailment of defendant No. 1's right to effective cross-examination. 6. TREATMENT OF PRECEDENT: MOHAMMED ABDUL WAHID AND EARLIER BOMBAY DECISIONS The judgment's treatment of precedent is particularly instructive for practitioners. The Supreme Court's decision in Mohammed Abdul Wahid v. Nilofer & Anr. (2024) 2 SCC 144 was treated as the controlling authority. In that landmark case, the Apex Court resolved a long-standing conflict between different Benches of the Bombay High Court by holding that a party to a suit and a witness are on the same footing for the purposes of adducing evidence — both documentary and oral. The Supreme Court further held that so long as a document produced for the limited purpose of effective cross-examination or to jog the memory of the witness is not completely divorced from or foreign to the pleadings made, the same cannot be disallowed. This overruled the Division Bench view of the Bombay High Court that had drawn a distinction between a "party" and a "witness" for the purpose of document production during cross-examination. The respondent-plaintiffs' reliance on Laxmikant Sinal Lotlekar v. Raghuvir Sinal Lotlekar was rejected by the court on two grounds. First, that decision was rendered in the context of the unamended CPC — before the 2002 amendments introduced Order VIII Rule 1A — and its propositions were based on provisions that have since been deleted or substantially substituted (including the old Rule 18 of Order VII and Rule 2 of Order XIII). Second, and more fundamentally, the observations in Laxmikant that "the only documents which can be produced in cross-examination are those which are outside the case of each of the parties" cannot be read as a binding precedent in light of the Supreme Court's subsequent pronouncement in Mohammed Wahid. The reliance on Rekha Nalavade v. Municipal Commissioner of Greater Mumbai was similarly distinguished. The court noted that Rekha Nalavade dealt with the specific situation of photographs produced during cross-examination of a co-defendant's witness who had no adverse interest, and that its factual matrix was entirely different from the present case. The decision in Rekha Nalavade did not lay down any proposition that would preclude the production of documents for confrontation under the statutory exceptions discussed above. 7. PRACTICAL IMPLICATIONS FOR CIVIL LITIGATION PRACTICE This judgment carries significant practical consequences for civil litigation across India, particularly in the courts of Maharashtra. First, it affirms that the right to produce documents during cross-examination for the purpose of confrontation is a statutory right flowing directly from the exceptions in Orders VII, VIII, and XIII of the CPC, and does not require a party to file any separate application. The trial court's role is not to grant or withhold "permission" but merely to verify that the document satisfies the relevance test under Section 145 of the Evidence Act ( Section 148 of the Bharatiya Sakshya Adhiniyam ). This means that a party who discovers a document after filing the written statement, or who did not have access to it earlier, is not forever barred from using it — provided the facts to which the document relates have been pleaded. Second, the judgment draws a clear line between the use of a document as substantive evidence in a party's own case (which requires compliance with the production timelines of Orders VII, VIII, and XIII) and the use of a document as a tool for cross-examination (which falls under the statutory exception). This distinction is of daily practical importance in trial courts where objections to documents produced during cross-examination are routinely raised and often sustained without proper application of law. Third, the judgment provides comfort to litigants whose amendment applications have been rejected. In the present case, defendant No. 1's application to amend his written statement to add particulars of the receipts was refused because the trial had commenced. The court held that the rejection of an amendment application does not extinguish the right to produce documents for cross-examination under the statutory exceptions — these are independent and self-standing rights that do not depend on the fate of any amendment application. Fourth, the critical qualifying condition — that the document must not be "completely divorced from or foreign to the pleadings" — ensures that this right is not misused to introduce entirely new cases through cross-examination. The safeguard is built into the test itself: the pleadings must already contain averments to which the document relates. This preserves the fundamental principle that what is not pleaded cannot be argued, while ensuring that documents supporting already-pleaded facts can be used for effective confrontation. 8. CONCLUSION AND KEY TAKEAWAYS The Bombay High Court's decision in Jijabhau Dyaneshwar Temgire v. Gangaram Khandu Temgire represents a welcome affirmation of the primacy of substantive justice over procedural formalism in civil trials. By holding that documents relevant to the pleadings can be produced during cross-examination without prior filing or leave of court, the judgment ensures that the statutory exceptions deliberately preserved by Parliament in the 2002 amendments are given their full and intended effect. The ruling correctly applies the Supreme Court's authoritative pronouncement in Mohammed Abdul Wahid v. Nilofer (2024) 2 SCC 144 and confines earlier conflicting decisions to their proper context. The judgment serves as an important reminder that the CPC's document production requirements, stringent as they are, were never designed to operate as absolute bars to the use of documents for cross-examination. The legislature, in its wisdom, carved out exceptions precisely because it recognised that the right to effective cross-examination is indispensable to fair adjudication. A trial court that mechanically refuses document production during cross-examination — without examining whether the document falls within the statutory exception and satisfies the relevance test of Section 145 Evidence Act / Section 148 BSA — commits a jurisdictional error that can and should be corrected by the writ court. For civil litigators, the key takeaway is this: always ensure your pleadings contain the factual foundation for the documents you may later need to use in cross-examination, and do not be deterred by the rejection of an amendment application from exercising your independent statutory right to produce documents for confrontation under Order VIII Rule 1A(4) read with Section 145 of the Evidence Act . Key Statutory Provisions Discussed: Order VII Rule 14 (Sub-rules 1, 3, and 4), Code of Civil Procedure, 1908 Order VIII Rule 1A (Sub-rules 1, 3, and 4), Code of Civil Procedure, 1908 Order XIII Rule 1 (Sub-rules 1, 2, and 3), Code of Civil Procedure, 1908 Section 145, Indian Evidence Act, 1872 Section 148, Bharatiya Sakshya Adhiniyam, 2023 Section 135, Indian Evidence Act, 1872 (Section 140, BSA) Key Case Laws Cited: Mohammed Abdul Wahid v. Nilofer & Anr. (2024) 2 SCC 144 — Supreme Court of India — Parties and witnesses are on the same footing for adducing evidence; documents not foreign to pleadings may be produced during cross-examination. Laxmikant Sinal Lotlekar v. Raghuvir Sinal Lotlekar (1984 SCC OnLine Bom 228) — Bombay High Court — Distinguished; rendered under unamended CPC and cannot be read as a blanket bar under the amended provisions. Rekha Nalavade v. The Municipal Commissioner of Greater Mumbai & Ors. (2025 SCC OnLine Bom 860) — Bombay High Court — Distinguished on facts; involved photographs produced during examination of a co-defendant's witness with no adverse interest.