A landmark clarification has emerged from the Punjab & Haryana High Court on the procedural boundaries between document production and witness testimony under the Indian Evidence Act. The judgment reinforces that summoning a person to produce a document does not convert them into a witness, preventing strategic manipulation of evidence in civil litigation.
Background & Facts
The Dispute
The petitioner, Mohan Singh (deceased), filed a suit for specific performance of an agreement to sell dated 03.05.2011. The original agreement was allegedly in the custody of Mr. Hardeep Singh, the petitioner’s former counsel, who failed to return it. The suit was instituted using a notarized copy. When the petitioner sought to introduce secondary evidence under Section 65 of the Indian Evidence Act, the Trial Court dismissed the application, holding that the original was not lost but in the possession of Charanjit Singh, son of the defendant’s second respondent.
Procedural History
The case progressed through multiple procedural steps:
- 2016: Trial Court dismissed application for secondary evidence, citing failure to serve notice under Section 66 IEA.
- 2018: Petitioner filed notice under Section 66 IEA directed to Hardeep Singh, who disclosed the original was handed to Charanjit Singh.
- 2018: Charanjit Singh appeared before the court in response to the notice but did not produce the document; instead, he filed an affidavit in examination-in-chief as PW1.
- 2020: Petitioner moved to de-exhibit Charanjit Singh’s affidavit, arguing he was never cited as a witness. The Trial Court rejected the application, holding that the petitioner’s counsel was present when the affidavit was tendered and failed to object.
Relief Sought
The petitioner sought to de-exhibit the affidavit of Charanjit Singh and prevent its use as evidence, arguing that a person summoned solely to produce a document cannot be treated as a witness without formal citation.
The Legal Issue
The central question was whether a person summoned under Section 66 of the Indian Evidence Act to produce a document automatically becomes a witness upon filing an affidavit, and whether such an affidavit can be admitted as evidence without being formally cited as a witness by the party seeking to rely on it.
Arguments Presented
For the Petitioner
Learned senior counsel argued that Section 139 of the Indian Evidence Act and its successor, Section 144 of the Bharatiya Sakshya Adhiniyam, 2023, explicitly state that a person summoned to produce a document does not become a witness merely by appearing or filing an affidavit. The petitioner emphasized that Charanjit Singh was never listed in the witness list, had no prior connection to the petitioner’s case, and was the son of a defendant. His affidavit, which corroborated the defendants’ case, was a deliberate attempt to circumvent evidentiary norms.
For the Respondent
The respondent’s counsel did not contest the merits of the case. He raised three technical objections: delay in filing the application, the Trial Court’s observation that the witness was bound to record his statement, and the absence of an objection at the time the affidavit was tendered. However, he conceded that he had no objection to allowing the revision petition.
The Court's Analysis
The Court undertook a rigorous interpretation of Section 139 of the Indian Evidence Act, which provides that a person summoned to produce a document is not bound to answer questions unless called as a witness. The Court noted that Section 144 of the BSA 2023, though not yet in force, reflects the same legislative intent and reinforces the principle that document production and witness testimony are distinct procedural categories.
"A witness who is summoned to produce a document possibly cannot be treated as a witness as per the provisions of Section 139 of the Indian Evidence Act, 1872 (Section 144 of the BSA 2023)."
The Court observed that Charanjit Singh’s conduct - filing an affidavit in examination-in-chief while being summoned only to produce the original agreement - constituted a procedural abuse. The Trial Court’s reasoning that the petitioner’s counsel was present and failed to object was rejected as legally insufficient. Presence does not equate to waiver, especially where the witness’s status was fundamentally irregular.
The Court emphasized that allowing such evidence would undermine the foundational principle of natural justice and the right to cross-examine. The affidavit was not merely inadmissible - it was procedurally illegitimate.
The Verdict
The petitioner succeeded. The High Court set aside the impugned order and allowed the application to de-exhibit Charanjit Singh’s affidavit. The Court held that a person summoned solely to produce a document cannot be treated as a witness without formal citation, and any affidavit filed by such a person is inadmissible unless properly called and examined as a witness.
What This Means For Similar Cases
Document Summoning Does Not Confer Witness Status
- Practitioners must now challenge the admissibility of affidavits filed by persons summoned only under Section 66 IEA or similar provisions.
- Any attempt to introduce such affidavits as substantive evidence must be met with a preliminary objection on grounds of procedural illegality.
- The burden shifts to the party seeking to rely on such evidence to prove formal citation as a witness.
Strategic Use of Family Members as Witnesses Is Now Risky
- When a party’s relative appears as a witness after being summoned to produce documents, courts will scrutinize the motive and procedural compliance.
- Such conduct may invite adverse inference under Section 114, IEA, particularly if the affidavit contradicts the summoning purpose.
- Advocates should document all notices and witness lists meticulously to preempt such tactics.
Procedural Silence Is Not Waiver of Fundamental Rights
- The Court rejected the notion that failure to object at the time of tendering waives the right to challenge admissibility later.
- This affirms that procedural irregularities affecting substantive rights can be raised at any stage, especially under Article 227.
- Practitioners may now file applications to de-exhibit evidence even post-trial if the witness status was improperly conferred.
