Adverse Inference can be Drawn Against a Party who does not Appear in Person to Depose: SC

Adverse inference can be drawn against a party who does not appear in person to depose: SC

The Apex Court has ruled that adverse inference can be drawn against a party who does not appear in person to depose, while setting aside the orders of the Trial Court and the High Court dismissing the suit filed by the plaintiff seeking the relief for a permanent injunction, and allows the appeal.

Observation made by the Court

  • In appeal, the Court observed that the original defendant did not appear in person to depose, and be cross-examined in the suit and instead his younger brother deposed on the basis of a power of attorney. 

“No explanation was furnished why the original defendant did not appear in person to depose. We find no reason not to draw an adverse inference against defendant in the circumstances”, the Court said.

  • Reliance was made on the judgment in Iswar Bhai C. Patel vs. Harihar Behera, (1999) 3 SCC 457. Wherein the Court held that, having not entered into the witness­box and having not presented himself for cross­examination, an adverse presumption has to be drawn against him on the basis of the principles contained in Illustration (g) of Section 114 of the Evidence Act, 1872.
  • It further added that the plaintiffs had produced documents which were more than 30 years old, from their proper custody along with an explanation for non­production of the originals. It observed that they were rejected without any valid reason holding that there could be no presumption that documents executed by a public authority had been issued in proper exercise of statutory powers. 

“This finding in our opinion 9 is clearly perverse in view of Section 114(e) of the Indian Evidence Act 1872, which provides that there shall be a presumption that all official acts have been regularly performed. The onus lies on the person who disputes the same to prove otherwise

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  • It also referred to judgment in Lakhi Baruah vs. Padma Kanta Kalita, (1996) 8 SCC 357, which dealt with the admissibility in evidence of thirty years old documents produced from proper custody.
  • The Court in the present case held that, the conclusion by the courts below that the appellants had failed to establish title and therefore could not be said to be in lawful possession is therefore held to be perverse and unsustainable. Similarly, the conclusion that the identity of the suit property was not established is also held to be perverse in view of letter dated 16.04.1956 from the municipality, referred to herein above. The contention of the respondents feebly seeking to question the title of the appellants was rejected holding that they had nothing to do with the suit schedule property and that their conduct was questionable. Yet the appellants were wrongly denied the relief of permanent injunction. In our considered opinion the Trial Court and the High Court both posed unto themselves the wrong question venturing to decide the title of the appellants, and arrived at an erroneous conclusion.
  • The Court on basis of the aforesaid discussion, the materials and evidence on record, we are of the considered opinion that the impugned orders dismissing the suit and the appeal are therefore not sustainable.

CASE: IQBAL BASITH vs. N. SUBBALAKSHMI

Citation: CIVIL APPEAL NO.1725 OF 2010

CORAM: Justices RF Nariman, Navin Sinha and Krishna Murari

Adverse inference can be drawn against a party who does not appear in person to depose: SC

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