114 EVIDENCE ACT- ADVERSE INFERENCE CAN BE DRAWN AGAINST PARTY WHO DOES NOT APPEAR IN PERSON TO DEPOSE
114 EVIDENCE ACT- ADVERSE INFERENCE CAN BE DRAWN AGAINST PARTY WHO DOES NOT APPEAR IN PERSON TO DEPOSE: SUPREME COURT
The Supreme Court has observed that adverse inference can be drawn against a party who does not appear in person to depose.
The bench comprising Justices RF Nariman, Navin Sinha and Krishna Murari observed thus while allowing appeal against the concurrent findings by the Trial Court and the High court dismissing a suit filed by plaintiff seeking the relief for permanent injunction.
In appeal, the court noted 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 bench said.
In this regard, the court noted the judgment in Iswar Bhai C. Patel vs. Harihar Behera, (1999) 3 SCC 457. In the said case, an adverse presumption has to be drawn against a party on the basis of principles contained in illustration (g) of Section 114 of the Evidence Act, for having not entered into the witness box and having not presented himself for cross-examination.
The court also noted 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.", the bench added. The court 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 bench, examining the evidence on record, observed that the title to the suit property was not disputed by the defendants and therefore the plaintiffs has, more than sufficiently established their lawful possession of the suit property.
CASE: IQBAL BASITH vs. N. SUBBALAKSHMI [CIVIL APPEAL NO.1725 OF 2010]
CORAM: Justices RF Nariman, Navin Sinha and Krishna Murari