2019 (5) TMI 795 - HC - Indian Laws

Issuance of Cheque - who was the Managing Director of the company at the relevant time - Reopening of evidence on the side of the plaintiff - the petitioner sought reopening of their evidence on the ground that at the time when the Memorandum of Understanding was entered into between the plaintiff and the 1st defendant, the 2nd defendant was the Managing Director and defendants 3 and 4 were the Directors of the 1st defendant company - Court below rejected the application on the short ground that the evidence available on record was sufficient to show who was the Managing Director at the relevant point of time when the contract was executed and the cheque issued. HELD THAT - Evidence given by a witness in a judicial proceeding is relevant under Section 33 of the Indian Evidence Act, for the purpose of proving the truth of the facts which it states, provided any one of the following conditions is satisfied; (1) the witness is dead or cannot be found, (2) the witness is incapable of giving evidence, (3) the witness is kept out of the way by the adverse party or (4) the presence of the witness cannot be obtained without an amount of delay or expense - According to the petitioner, the 2nd defendant is kept out of the way by the adverse party. The three conditions laid down in proviso to section 33 are also satisfied, namely, (1) that the proceeding was between the same parties, (2) that the adverse party in the first proceeding had the right to cross-examine and (3) that the questions in issue were substantially the same. At the time when the petitioner examined PW.1, they could not have anticipated that the 2nd defendant would not go to the witness box. If the petitioner had believed that the 2nd defendant being the person, who was the Managing Director of the 1st defendant at the time of entering into the contract, would certainly go to the witness box, they were justified in their belief. Normally, a party to a civil suit would choose to examine a person, who participated in the negotiations at the time of entering into the contract - Rebuttal evidence, by its very nature, can come only after the evidence on the side of the defendant is over. This aspect has been completely lost sight of by the Commercial Court. Hence, the revision is liable to be allowed. The application for reopening of the evidence filed by the petitioner shall stand allowed - revision petition allowed.

Summary

Issues:
Petitioner's application to reopen evidence on the side of the plaintiff in a civil suit dismissed by the Commercial Court.

Analysis:
The petitioner filed a civil suit for recovery of a sum against the respondents. The suit was transferred to the Commercial Court. Evidence was closed after the examination of witnesses. The petitioner sought to reopen evidence to mark the deposition of the 2nd defendant from a criminal case. The application was dismissed by the Commercial Court, leading to the revision petition.

The petitioner's contention was that the evidence of the 2nd defendant in the criminal case was inconsistent with the evidence of the 3rd defendant in the civil suit. The petitioner wanted to adduce rebuttal evidence to clarify discrepancies. The Commercial Court rejected the application, stating the available evidence was sufficient.

The petitioner argued that Section 33 of the Indian Evidence Act allows for the relevancy of evidence given by a witness in a previous proceeding to prove the truth of facts stated. The petitioner claimed the conditions under Section 33 were satisfied, justifying the reopening of evidence.

The respondents contended that the petitioner's delay in filing the application for reopening defeated the purpose of the Code. However, the High Court disagreed, stating that even if evidence is found irrelevant later, costs can be awarded. The High Court emphasized the importance of allowing the petitioner to mark the deposition of the 2nd defendant for a fair trial.

The High Court allowed the revision petition, setting aside the Commercial Court's order. The petitioner was granted permission to reopen the evidence to mark the deposition of the 2nd defendant and the judgment from the criminal case. The High Court highlighted the necessity of providing an opportunity for rebuttal evidence in light of the circumstances overlooked by the Commercial Court.