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2020 (10) TMI 1368 - HC - Indian LawsSuit for declaration of title of the plaintiff and the second defendant to the suit property - seeking exemption to adduce evidence - HELD THAT - The revision petitioner cannot seek exemption to adduce evidence due to his choice to examine his son. If exemption to appear and adduce evidence is granted to the defendant it would imply that the plaintiff may not be in a position to invoke Section 114 illustration (g) of the Indian Evidence Act best evidence could be shut. In a litigious battle if a party fails to produce best evidence when he is in a position to tender it other side is entitled to seek the court an adverse inference. The court cannot forfeit its power to draw adverse inference by its own orders. This petition is partly allowed and only that portion of the impugned order in I.A. No. 3 of 2020 in O.S. No. 72 of 2013 on the file of the Additional District Munsif Court Valliyur which exempts the first defendant from tendering evidence is set aside.
Issues: Declaration of title to the suit property; Exemption from adducing evidence for the first defendant.
Declaration of Title to the Suit Property: The plaintiff in O.S. No. 72 of 2013 sought a declaration of title to the suit property, with the second defendant also claiming title. The first defendant resisted the suit. The trial had commenced, with the plaintiff presenting evidence. The first defendant filed EA. No. 3 of 2020 seeking to examine his son on his behalf and to be exempted from adducing evidence. The trial court allowed this request. The High Court ordered private notice to the first defendant, which was returned unclaimed, deeming it sufficient service. Exemption from Adducing Evidence: The revision petitioner argued that under Order 18 Rule 3A C.P.C., a party wanting to examine an independent witness before stepping into the box can seek court permission. However, a party burdened to establish their case cannot be exempted from adducing evidence. The revision petitioner contended that if the first defendant, competent to give evidence, is allowed exemption to examine his son, it could hinder the plaintiff's invocation of Section 114 illustration (g) of the Indian Evidence Act. The High Court agreed with the revision petitioner's submission, emphasizing that best evidence should be made available to the court. The court held that granting exemption from tendering evidence, especially when a witness is in the best position to provide it, could lead to the court shirking its responsibility to receive the best evidence. Failure to produce the best evidence when available could result in adverse inferences against the party. Therefore, the court partly allowed the petition, setting aside the portion of the order exempting the first defendant from tendering evidence in O.S. No. 72 of 2013. The rest of the order remained unchanged, with no costs imposed.
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