114 Evidence Act - Adverse Inference Can Be Drawn Against Party Who Does Not Appear In Person To Depose: Supreme Court Of India

KEY TAKEAWAYS

• Case in reference - IQBAL BASITH vs. N. SUBBALAKSHMI [CIVIL APPEAL NO.1725 OF 2010]
• The coram was of Justices RF Nariman, Navin Sinha and Krishna Murari • The counsel was Sr. Adv Basava Prabhu S. Patil, Adv Purushottam Sharma Tripathi
• The bench comprising Justices RF Nariman, Navin Sinha and Krishna Murariallowed an appeal against the concurrent findings by the Trial Court and the High court dismissing a suit filed by the plaintiff seeking the relief for a permanent injunction.
• The order was set aside by this court in C.A. No. 2072/2000 on 22.07.2004 and the matter was remanded to the High Court.
• In this regard, the court noted the judgment in Iswar Bhai C. Patel vs. Harihar Behera, (1999) 3 SCC 457.

INTRODUCTION

An appeal was filed before the Supreme Court against the Trial Court and High Courts order dismissing a suit seeking relief for a permanent injunction. While allowing appeal against the concurrent findings the Supreme Court observed that adverse inference can be drawn against a party who does not appear in person to depose.

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 the 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 the defendant in the circumstances", the bench said.

BRIEF DETAILS OF THE FACTS

The plaintiffs are in appeal against the concurrent findings by two courts, rejecting their plaint seeking the relief for permanent injunction. The suit was initially dismissed. R.F.A. No.116/1990 preferred by the appellants was allowed by the High Court. The order was set aside by this court in C.A. No. 2072/2000 on 22.07.2004 and the matter was remanded to the High Court.

Mr. Basava Prabhu S. Patil, learned senior counsel appearing on behalf of the appellants, submits that the respondents had no concern with the suit property no. 44/6, ad measuring 90 ft. x 110 ft. situated on the J. C. Road in Bangalore.

The respondents were the owner of property bearing no. 42, at a distance of 103 ft., with intervening properties also. The respondents illegally attempted to encroach on the appellants property on 10.02.1974 by dumping bamboo and other construction materials, compelling the appellants to institute the present suit. Shri Patil relied upon the reports of the Pleader Commissioner appointed by the Trial Court, and again by the High Court, to submit that the appellants were found to be in possession of the property coupled with the entries in the property tax register and the municipal tax receipts in name of the appellants. The respondents did not claim any title in themselves to the suit property, but feebly sought to question the appellants title in a vague manner. O.S. No. 3334/1984 filed by the respondents was allowed to be dismissed in default. The suit filed by the appellants was only for the grant of permanent injunction. No issue with regard to the title was therefore framed. The lawful possession of the appellants stood established from Ex. D¬1 dated 07.09.1946, filed by the respondents, vesting title in their vendor, O.A. Majid Khan by the Bangalore City Municipality (hereinafter referred to as “the municipality”) under Section 41(2) of the Mysore City Municipalities Act, 1933 (hereinafter referred to as ‘the Act’) over an area of 75 ft. x 110 ft., and the subsequent sale deed dated 27.09.1962 by the Municipality in favor of the appellants mother for the remaining area of 15 ft. x 110 ft.

FURTHER DETAILS

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 not having 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 the 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.

CONCLUSION

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 have, more than sufficiently established their lawful possession of the suit property.