Adverse inference- Party not entering witness box- only filing statement of oath- Adverse inference can be drawn

Citation

CDJ 2007 MHC 3592

Head note

Code Of Civil Procedure, 1908 - Section 100 - Order 41, Rule 27 - Indian Evidence Act, 1872 - Section 17, Section 21, Section 58, Section 144 - the Second Appeal was admitted, this Court has framed the following substantial questions of law - 1. Whether the First Appellate Court is correct in law in reversing the permanent injunction granted by the Trial Court despite the admission made by the defendants in their written statement as well as in the oral evidence of DW.1 and DW.2 which enables the plaintiff to succeed in the Suit in view of Sections 17, 21 and 58 of Indian Evidence Act - 2. Whether the First Appellate Court has properly appreciated and applied the principles to find out the admissibility of the additional documents in the First Appeal especially when the respondents herein have failed to comply with the mandatory requirements as contemplated under Rules 27 and 28 of Order 41, CPC - 3. Whether the documents came into existence subsequent to the filing of the Suit and marked as Exhibits in the Appellate stage is relevant for the purpose of the case particularly when the pleading and oral evidence adduced by the defendants will support the case of the plaintiff - the present case, by applying the said rulings of the Honorable Supreme Court the First Appellate Court has not appreciated the correct distinction between the production of documents and proving of the documents as additional evidence. In such circumstances, when the law is clear on this aspect, it can never be said as if the plaintiff has waived his right. In view of the above said facts, the judgment and decree of the First Appellate Court are set aside and the Second Appeal stands allowed and the matter is remanded back to the First Appellate Court with a direction to follow the provision of Order 41, Rules 27 and 28, CPC scrupulously by giving opportunities to both the parties as indicated above and pass appropriate judgment - Second Appeal stands allowed.

Comparative Citation:
2007 (3) CTC 456, 2007 (3) CTC 59, 2007 (3) MLJ 857, 2007 (2) LW 999

#witnessbox

#adverseinference