2020 (7) TMI 810 - HC - Indian Laws

Violation of principles of natural justice - cross-examination of witnesses - petition filed for eschewing the evidence of a witness for not submitting himself for continuation of cross-examination - Whether the evidence of a witness, who failed to submit himself for cross examination, shall be rejected or not? - HELD THAT - From the perusal of adjudications of the Trial Court placed before this Court, reveals that after cross examination in part on 07.09.2018, the case was adjourned for continuation of cross examination on six occasions. On all these hearings, in spite of the direction to be present, the witness failed to appear before the Court. Unless there is necessity for cross examination, the case would not have been adjourned several times. Even assuming that the elaborate cross examination was made, the evidence should have been closed on that date itself. Nobody can presume that there will not be any surprise element till closing of the evidence. Surprisingly admissions as to facts may pop up even at the end of the examination of witness. Naturally, the defendant puts down his defense by way of written statement either denying averments made in the plaint as a whole or admitting to certain facts generally or specifically. He lets in evidence to disprove the case projected by the plaintiff and the evidentiary value of the plaint documents. When he underwent cross examination to a considerable extent, but could not complete the same due to certain unavoidable circumstances, Courts cannot reject entire evidence, but shall take into consideration its probative value, while deciding the case, more so, when the plaintiff evades or avoids and deliberately delays completion of evidence. On the other hand, a case projected by the plaintiff, shall be based on introduction of facts through plaint averments, supported by oral and documentary evidence. It can be controverted only through cross examination and the veracity of the evidence can be tested by other side. Plaintiff being Dominus litis spearheads the litigation. Onus is more on him to prove the case, unless the burden is shifted to opposite side. In that process he must be ready and prepared and show that he is always available and willing to complete the evidence. In spite of his readiness, if it is shown that the cross examination was avoided or delayed at the instance of the opposite party, in such circumstances, probative value of the available evidence would be taken into consideration. The conduct of the Plaintiff, after having filed the proof affidavit and marked the documents, remaining absent for cross examination will amount to denial of opportunity to the opponent to disprove the claim and render the evidence as complete one - the plaintiff in the instant case, who could not appear before the court on the ground that his employer refused to grant leave for months and in fact years together, is not entitled to any equitable treatment and his evidence cannot retained for considering its probative value. Even though it is countered by the respondent/Plaintiff that extensive cross examination has been done, it is relevant to note that the learned judge has not chosen to consider or accept the same and has not observed as such. If it is true that extensive cross examination has already been made, the matter need not have been adjourned for about seven hearings for continuation of cross examination. Petition allowed.

Summary

Issues Involved:
1. Whether the evidence of a witness who failed to submit himself for cross-examination should be rejected.
2. Whether the trial court's decision to dismiss the petition for eschewing the evidence was justified.

Issue-wise Detailed Analysis:

1. Whether the evidence of a witness who failed to submit himself for cross-examination should be rejected:

The core issue in this case revolves around whether the evidence of a witness, who did not submit himself for cross-examination, should be retained or rejected. The plaintiff, who examined himself as P.W.1, failed to appear for further cross-examination on multiple occasions despite being partially cross-examined on two occasions. The defendant argued that the plaintiff's repeated absences amounted to evasion and thus his evidence should be eschewed. The trial court dismissed the petition, relying on Section 114 of the Evidence Act, which allows for certain presumptions based on the evidence presented.

The High Court, however, emphasized that the plaintiff's conduct of repeatedly failing to appear for cross-examination denied the defendant the opportunity to test the veracity of his evidence. The Court cited precedents, including the Supreme Court's judgment in *Vidhyadhar vs. Manikrao*, which established that if a party does not offer themselves for cross-examination, a presumption arises that their case is not correct. The Court also referred to *D.F. Philips vs. Damayanthi Kailasam*, which highlighted that evidence not tested by cross-examination has limited probative value and should be considered by the trial court based on the specific circumstances of the case.

The High Court concluded that the plaintiff's incomplete evidence, not subjected to full cross-examination due to his own absences, should not be retained on record. The Court underscored that allowing such incomplete evidence would undermine the adversarial system of law, where the opportunity for cross-examination is crucial for establishing the truth.

2. Whether the trial court's decision to dismiss the petition for eschewing the evidence was justified:

The trial court dismissed the defendant's petition to eschew the evidence of P.W.1 on the grounds that the witness was present on two occasions and cross-examined, thus presumption under Section 114 of the Evidence Act was applicable. The High Court, however, found this reasoning flawed. It noted that the plaintiff's repeated absences for further cross-examination, despite court orders, indicated a deliberate attempt to avoid scrutiny.

The High Court pointed out that the trial court failed to consider the plaintiff's conduct, which effectively denied the defendant a fair opportunity to challenge the evidence. The Court emphasized that the plaintiff's absences were not justified by any compelling reasons and that his conduct amounted to a denial of justice to the defendant.

The High Court also highlighted that the plaintiff's side continued to present other witnesses after the evidence of P.W.1 was closed, yet no attempt was made to recall P.W.1 for cross-examination. This further demonstrated the plaintiff's lack of interest in completing his evidence.

In conclusion, the High Court set aside the trial court's order, determining that the incomplete evidence of P.W.1 should be eschewed from the record. The Court held that retaining such evidence would be contrary to the principles of justice and the adversarial system of law.

Final Order:
The High Court allowed the Civil Revision Petition, set aside the trial court's order, and directed that the incomplete evidence of P.W.1 be eschewed from the record. The Court emphasized that the plaintiff's conduct of avoiding cross-examination rendered his evidence inadmissible and lacking probative value.