114 evidence act- adverse inference can be drawn against party who does not appear in person to depose: Supreme Court

17th Dec

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 division bench comprising of Justices RF Nariman, Navin Sinha and Krishna murari observed, while allowing appeal against the concurrent findings by the trial court and the high court dismissed a suit filed by plaintiff seeking the relief for permanent injunction.
The court noted in the appeal that the original defendant did not appear in person to depose, and was not there for the cross examination in the suit and instead his younger brother showed up and deposed on the basis of a power of attorney.
The bench noted and said that, no explanation was furnished why the original defendant did not appear in person to depose. The court did not find any reason not to draw an adverse inference against defendant in the circumstances.
In this case, the court referred and noted the judgment in Ishwar bhai c. Patel vs. Harihar Behera. In said case, an adverse presumption has to be drawn against a party on the basis of principles contained in illustrations (g) of Section 114 of the evidence act, for having not entered into the witness box and not being present for the cross examination.
The court also noticed that the plaintiffs had produced documents which were more than 30 years old, from their proper custody along with an explanation for non producing the original documents. They were rejected without any valid reason on the contention that there could be no presumption that documents executed by a public authority had been issued in proper exercise of statutory powers.
The court also referred to judgment in lakhi Baruah vs Padma manga kalita, which dealt with the admissibility in evidence of thirty years old documents produced from proper custody.