SECOND APPEAL IN NCDRC ON QUESTIONS OF LAW- MAINTAINABLE?

SECOND APPEAL IN NCDRC ON Questions of law- Maintainable?

The National Commission for Consumer Disputes (NCDRC) is a apex body for adjudication of consumer disputes , subject to, of course, appellate remedy, wherever it is provided before Supreme Court of India and writ remedy, if could be invoked in apt cases before the High Court. The Second appeal is preferred before the National Commission, against the order passed by State Commissions in 1^st appeal and only if substantial question of law is disclosed. In other words, if substantial question of law is not framed and cannot be framed in the backdrop of the facts, the second appeal cannot be entertained.

1.   In this regard the NCDRC had occasion to deal with the issue in a  matter  captioned  as Retail Limited vs Diksha Goel Second Appeal (SA) no. 01 of 2021and Second Appeal no. 2 of 2021, SA 3/2021, SA 7/2021, SA 8/2021and SA 10/2021

2.   To set out the facts of the case in brief, the above complaint was allowed by the District Commission and it determined both 'deficiency in service' and 'unfair trade practice' on the part of the appellant, thus, the act of Opposite Party by forcing the gullible consumers to pay additionally for the carry bags is surely and certainly amounts to deficiency in service and its indulgence into unfair trade practice") and ordered that Rs. 7/- wrongly charged for the carry bag be refunded to the complainant, Rs. 1000/- be paid to the complainant for harassment and mental agony, Rs. 500/- be paid to the complainant as litigation expenses and Rs. 10,000/- be deposited in the Consumer Legal Aid Account of the District Commission. The first appeal filed by the appellant herein was dismissed by the State Commission and it is held that the order passed by District Commission-I partly allowing the consumer complaint did not need any interference and as such, was upheld.

3.   The NCDRC, no doubt, had to deliberate on question of law. If the findings were neither perverse nor any material evidence were ignored by the foras below, no case of interference in second appeal shall be warranted.  In case orders were passed on the basis of no evidence or if the foras below have drawn unsustainable and wrong inferences beyond proved facts then the interference may be warranted. In other words, on aspect of facts, the question of law are not framed.  

4.   Therefore, it needs no elaboration that a question of fact or finding of fact is different from a question of law and also that a question of law too is different from a substantial question of law.

5. Section 51(3) of the Act 2019 requires that the memorandum of appeal should precisely state the substantial question(s) of law involved in the appeal. Section 51 of the Consumer Protection Act 2019 is being reproduced for reference:

51. Appeal to National Commission.-

(1) Any person aggrieved by an order made by the State Commission in exercise of its powers conferred by sub-clauses (i) or (ii) of clause (a) of sub-section (1) of Section 47 may prefer an appeal against such order to the National Commission within a period of thirty days from the date of the order in such form and manner as may be prescribed:

Provided that the National Commission shall not entertain the appeal after the expiry of the said period of thirty days unless it is satisfied that there was sufficient cause for not filing it within that period:

Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the State Commission, shall be entertained by the National Commission unless the appellant has deposited fifty per cent. of that amount in the manner as may be prescribed.

(2) Save as otherwise expressly provided under this Act or by any other law for the time being in force, an appeal shall lie to the National Commission from any order passed in appeal by any State Commission, if the National Commission is satisfied that the case involves a substantial question of law.

(3) In an appeal involving a question of law, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the National Commission is satisfied that a substantial question of law is involved in any case, it shall formulate that question and hear the appeal on that question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the National Commission to hear, for reasons to be recorded in writing, the appeal on any other substantial question of law, if it is satisfied that the case involves such question of law.

(5) An appeal may lie to the National Commission under this section from an order passed ex parte by the State Commission.

6. It is worth mentioning that Section 51 of the 2019 Act is similar to that of Section100 of the Code of Civil Procedure. It is ultimately for the NCDRC to be satisfied that some substantial question of law is involved in the matter, and it is for the NCDRC then, to formulate such question of law and hear the appeal on that question (Section 51(4).

7. In case NCDRC do not find any such question of law which may befittingly qualify to be called a substantial question of law and further, if findings may be said to have not been arrived at on the basis of inadmissible material or where the foras below have not fallen into the error of refusing to consider some material declaring it to be inadmissible even though it was legally quite admissible, then, it may not be contended that the findings have been arrived at on the basis of no evidence. No doubt, it is equally true that settled principles of law should not also be misapplied.

                    8. Similarly, the Supreme Court, in Reliance Retail Limited vs Dharam Pal[ SLP (C) No.                                18376/ 2021] was converted in Civil Appeal in 2024 arising out of SLP (C) No.18376/2021. 

The NCDRC had dismissed the second appeal, as no substantial question of law was said to have been arisen.

9. In Divya Chadri  Vs  President,  Madhuvana House Building   (SA NO. 25 OF 2022),   the National Commission has held in para 7 as under:

07.     Hon'ble Supreme Court in the case of  Karnataka Housing Board Vs. K.A. Nagamani, Civil Appeal No. 4631 of 2019 has held that the Revision Petition U/S 21(b) of the Consumer Protection Act, 1986 is not maintainable before this Commission which may be filed against an Order passed by the State Commission in Appeal arising out of the Execution Proceedings, as the Consumer Complaint is not pending.  Principle laid down  by the Hon'ble Supreme Court in Karnataka Housing Board (supra) would also be applicable to an Appeal preferred under Sub Section 2 of the Section  51 of the Act, 2019 for the simple reason that Section 51 of the Act, 2019 provides for filing an Appeal against an Order passed by the State Commission in exercise of its power conferred by Sub Clauses (i) and (ii) of Clause (a) of Sub Section (1) of Section 47 of the Act 2019.  Similarly, under Sub Clause (iii) of Clause (a) of Sub Section (1) of Section 47 of the Act 2019, the State Commission has been given jurisdiction to pass Order in an Appeal against the Orders of any District Commission within the State.  Though, a First Appeal under Sub Section (1) of Section 51 of the Act, 2019, is not provided against an Order passed by the State Commission u/s 47 (1) (a) (iii) but a Second Appeal under Sub Section (2) of Section 51 of the Act, 2019 has been provided.  It may be mentioned here that under Section 73 of the Act 2019, an Appeal has been provided against an Order passed by the District Commission under Sub Section (1) of Section 72 of the Act 2019, to the State Commission and if the Order is passed by the State Commission to the National Commission and further if the Order is passed by the National Commission to the Hon'ble Supreme Court. Thus, the Order passed by the District Commission in Execution Proceedings has to be challenged before the State Commission only and thereafter, no further Appeal lies before this Commission as Complaint is not pending.  The Principles laid down by the Hon'ble Supreme Court in the case of Karnataka Housing Board (Supra) will also apply to the Appeals arising out of Execution Proceedings”.

 

What therefore is implicit in the aforesaid discussion that second appeal shall lie before the National Commission (NCDRC0 only in case the order is passed by State Commission in first appeal and in the Memorandum of appeal the substantial question of law are required to be proposed before NCDRC. The NCDRC shall have to frame substantial question of law, if according to NCDRC, the question of law indeed emerges and then, the same is required to be framed for adjudication. However, if it appears to the NCDRC that no substantial question of law had arisen, then, at that stage itself, the second appeal could be dismissed. Moreover, in second appeal, so far as it relates to execution proceedings, the same shall not lie as is held in Divya Chadri (Supra) by the NCDRC. As indicated above, it is also no res integra that the second appeal u/s 51 of 2019 Act shall be materially akin to Section 100 of Civil Procedure Code, relating to civil cases. Thus, in a routine manner, substantial question of law cannot be framed. The question of law can only be framed on the parameter as indicated above  In case orders were passed on the basis of no evidence or if the foras below have drawn unsustainable and wrong inferences beyond proved facts, then, the interference may be warranted and not otherwise.    

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Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com

WHETHER A WRIT PETITION IS MAINTAINABLE AGAINST ORDER OF NATIONAL COMMISSION (NCDRC)

 

Whether a writ petition is maintainable against order of National Commission (NCDRC)

         In reference to Section 58(1)(a)(iii) of CPA 2019

The Consumer Protection Act 2019( In short CPA) as it evolved from the Consumer Protection Act 1986, over the years is a comprehensive Act containing the mode and manner of redressal of consumer complaints, appeals, revisions, reviews and/or execution cases. The final order passed by the National Commission for Consumer Disputes is appealable before Supreme Court under section 67 of the Consumer Protection Act (CPA) 2019.

At the very outset, the provision of appeal against the order of NCDRC as contained in section 67 may be reproduced herein:

Section 67: Appeal Against Order of National Commission.

^*67. Any person, aggrieved by an order made by the National Commission in exercise of its powers conferred by sub-clause (i) or (ii) of clause (a) of sub-section (1) of section 58, may prefer an appeal against such order to the Supreme Court within a period of thirty days from the date of the order:

Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period:

Provided further that no appeal by a person who is required to pay any amount in terms of an order of the National Commission shall be entertained by the Supreme Court unless that person has deposited fifty per cent. of that amount in the manner as may be prescribed.

 

Contextually, it is also necessary to reproduce section 58 of CPA so as to further deliberate in the aspect. The Section 58 of CPA is reproduced as under:

Section 58: Jurisdiction of National Commission.

58. (1) Subject to the other provisions of this Act, the National Commission shall have jurisdiction—

(a) to entertain—

(i) complaints where the value of the goods or services paid as consideration exceeds rupees ten crore:

Provided that where the Central Government deems it necessary so to do, it may prescribe such other value, as it deems fit;

(ii) complaints against unfair contracts, where the value of goods or services paid as consideration exceeds ten crore rupees;

(iii) appeals against the orders of any State Commission;^#(iv) appeals against the orders of the Central Authority; and

(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

(2) The jurisdiction, powers and authority of the National Commission may be exercised by Benches thereof and a Bench may be constituted by the President with one or more members as he may deem fit:

Provided that the senior-most member of the Bench shall preside over the Bench.

(3) Where the members of a Bench differ in opinion on any point, the points shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ, and make a reference to the President who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other members and such point or points shall be decided according to the opinion of the majority of the members who have heard the case, including those who first heard it:

Provided that the President or the other member, as the case may be, shall give opinion on the point or points so referred within a period of two months from the date of such reference.

From the bare perusal of Section 67 of the CPA 2019 it is apparent that the appeal before the Supreme Court is provided for only in respect of order of National Commission in terms of sub-clause (i) &(ii) of clause (a) of Section 58(1) of CPA, 2019. What is clear that as regards sub clause (iii) of Section 58(1)(a) no appeal is provided for. In such a situation, what shall be the remedy, if the order is passed by National Commission u/s 58(1)(a)(iii) of CPC 2019?

The short question which is posed for the consideration of the Supreme Court in a matter Ibrat Faizan vs Omaxe Buildhome Pvt. Ltd in a CIVIL APPEAL NO. 3072 OF 2022 was as under:

 “whether, against the order passed by the National Commission in an appeal under Section 58 (1) (a)(iii)  of the 2019 Act, a writ petition before the concerned High Court under Article 227 the Constitution of India would be maintainable?”

The Supreme Court has answered the situation as referred to above, in a matter captioned as Ibrat Faizan vs Omaxe Buildhome Pvt. Ltd (Supra). In the aforesaid case , the order passed by a ld Single Judge of High Court was impugned whereby, the learned Single Judge of the High Court had answered the question of jurisdiction and held that against the order passed by the National Commission in First appeal No. 250/2021, a writ petition would be maintainable under Article 227 of the Constitution of India. The writ petition was allowed. The Special leave Petition was thus preferred, as the petitioner was aggrieved and dissatisfied with the order passed by the High Court holding that against the order passed by the National Commission passed in an appeal under Section 58 (1)(a)(iii) of the Consumer Protection Act, 2019, a writ petition under Article 227 of the Constitution of India would be maintainable. The original respondent before the High Court had preferred the appeal before this Court.

CONTENTIONS OF Appellant

(i)          Against the order passed by the National Commission, an appeal provided under Section 27A (1) (c) of the Consumer Protection Act, 1986, would be maintainable and without exhausting the said remedy, the High Court ought not to have entertained the writ petition under Article 227  of the Constitution of India, which was against the order passed by the National Commission in First Appeal.

(ii)        In the alternative, it was contended that assuming that the writ petition under Article 227 of the Constitution of India against the order passed by the National Commission, impugned before the High Court, was maintainable, then too, as even then, in the limited jurisdiction available under Article 227 of the Constitution of India, the High Court ought not to have stayed the order passed by the National Commission passed in first appeal.

                                        CONTENTIONS OF RESPONDENT

(i)          As the appeal before the National Commission was under Section 58 (1)(a)(iii) of the 2019 Act, there is no further appeal provided against the order of the National Commission, as provided to the Supreme Court under Section 67of the 2019 Act, against the order passed by the National Commission under Section 58 (1)(a)(iii) of the 2019 Act. Hence, a writ petition under Article 227 of the Constitution of India would be maintainable. 

(ii)        Reliance was placed on the decision of Supreme Court in the case of Associated Cement Companies Limited Vs PN Sharma, AIR 1965 SC 1595 (paras 44 & 45), and the subsequent decision of Supreme Court in the case of L. Chandra Kumar Vs Union of India (1997) 3 SCC 261.

(iii)          The High Court has rightly observed and held that against the judgment and order passed by the National Commission, impugned before the High Court, a writ petition under Article 227 of the Constitution of India would be maintainable.

ANALYSIS BY SUPREME COURT

Whether the National Commission can be said to be a “tribunal” for the purpose of exercise of powers under Article 227 of the Constitution of India by the High Court is concerned, has been considered by a Constitution Bench of the Supreme  Court in the case of Associated Cement Companies Limited (supra), which is required to be referred to. In paragraphs 44 and 45, it is observed and held as under:

“44. An authority other than a court may be vested by statute with judicial power in widely different circumstances, which it would be impossible and indeed inadvisable to attempt to define exhaustively. The proper thing is to examine each case as it arises, and to ascertain whether the powers vested in the authority can be truly described as judicial functions or judicial powers of the State. For the purpose of this case, it is sufficient to say that any outside authority empowered by the State to determine conclusively the rights of two or more contending parties with regard to any matter in controversy between them satisfies the test of an authority vested with the judicial powers of the State and may be regarded as a tribunal within the meaning of Article 136 . Such a power of adjudication implies that the authority must act judicially and must determine the dispute by ascertainment of the relevant facts on the materials before it and by application of the relevant law to those facts. 

CONSTITUTION Bench OF SUPREME COURT

This test of a tribunal in a constitution bench judgment  reported as L. Chandra Kumar (supra) , the Supreme Court had the occasion to deal with the jurisdiction of the High Courts under Articles 226/227 of the Constitution of India in respect of powers of judicial review, it was observed and held in para 90 as under:

“90. We may first address the issue of exclusion of the power of judicial review of the High Courts. We have already held that in respect of the power of judicial review, the jurisdiction of the High Courts under Articles 226/227 cannot wholly be excluded. It has been contended before us that the Tribunals should not be allowed to adjudicate upon matters where the vires of legislations is questioned, and that they should restrict themselves to handling matters where constitutional issues are not raised. We cannot bring ourselves to agree to this proposition as that may result in splitting up proceedings and may cause avoidable delay. If such a view were to be adopted, it would be open for litigants to raise constitutional issues, many of which may be quite frivolous, to directly approach the High Courts and thus subvert the jurisdiction of the Tribunals. Moreover, even in these special branches of law, some areas do involve the consideration of constitutional questions on a regular basis; for instance, in service law matters, a large majority of cases involve an interpretation of Article 14, 15 and 16 of the Constitution. To hold that the Tribunals have no power to handle matters involving constitutional issues would not serve the purpose for which they were constituted. On the other hand, to hold that all such decisions will be subject to the jurisdiction of the High Courts under Articles 226/227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the Tribunal concerned falls will serve two purposes. While saving the power of judicial review of legislative action vested in the High Courts under Articles 226/227 of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal. The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter.” That thereafter, it is observed and held that against the order passed by the tribunal, the aggrieved party may approach the concerned High Court under Article 227 of the Constitution of India”.

The Supreme Court has held in Ibrat Faizan vs Omaxe Buildhome Pvt. Ltd (Supra) that so far as the remedy which may be available under Article 136 of the Constitution of India is concerned, it cannot be disputed that the remedy by way of an appeal by special leave under Article 136 of the Constitution of India may be too expensive and as observed in the case of L Chanra Kumar (Supra), the said remedy can be said to be inaccessible for it to be real and effective. Therefore, when the remedy under Article 227 of the Constitution of India before the concerned High Court is provided, in that case, it would be in furtherance of the right of access to justice of the aggrieved party, may be a complainant, to approach the concerned High Court at a lower cost, rather than a Special Leave to Appeal under Article of the Constitution. Therefore, in the present case, the High Court has not committed any error in entertaining the writ petition under Article 227 of the Constitution of India against the order passed by the National Commission which has been passed in an appeal under Section 58(1)(a) (iii) of the 2019 Act. However, while exercising the powers under Article 227  of the Constitution of India, the High Court may subjects itself to the rigour of Article 227 of the Constitution and the High Court has to exercise the jurisdiction under Article 227 within the parameters within which such jurisdiction is required to be exercised. The scope and ambit of jurisdiction of Article 227 of the Constitution has been explained by Supreme Court in the case of Estralla Rubber Vs Dass Estate (P) Ltd, (2001) 8 SCC 97, which has been consistently followed by the Supreme Court in the case of Garment Craft Vs Prakash Chand Goel, 2022 SCC Online SC 29. Therefore, while exercising the powers under Article 227 of the Constitution, the High Court has to act within the parameters to exercise the powers under Article 227 of the Constitution. It goes without saying that even while considering the grant of interim stay/relief in a writ petition under Article 227 of the Constitution of India, the High Court has to bear in mind the limited jurisdiction of superintendence under Article 227 of the Constitution. Therefore, while granting any interim stay/relief in a writ petition under Article 227 of the Constitution against an order passed by the National Commission, the same shall always be subject to the rigour of the powers to be exercised under Article of the Constitution of India.

Therefore, it is held that a writ petition under Article 227 of the Constitution of India before the concerned High Court against the order passed by the National Commission in an appeal under Section 58(1)(a)(iii) of the 2019 Act shall be maintainable and necessary orders could be passed by the High Court.

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Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com

 

 

EVIDENTIARY VALUE OF A PARTIALLY CROSS EXAMINED WITNESS

 

Evidentiary value of a partially cross examined witness

 

The examination of witness and their cross examination before courts of law has always been considered as a quintessential elements of justice system. In order to unravel truth or to prove a case, testimony of witness/es shall have to be appreciated in the touchstone of law and their examination in chief and cross examination should be seen in that perspective. In fact, by virtue of cross examination of witnesses, the contesting party can prove or assail the case set out by the rival parties, as the case may be. The evidence in a case therefore attains paramount significance.

However, what if the evidence affidavit is filed and tendered by a witness, but the witnesses were not cross examined, or, the witnesses were only partially cross examined in one or two times, but the cross examination remained inconclusive. Whether the evidentiary value of even partially cross examined witness shall have no relevance, unless , it is concluded.? The discussion herein relates to the aforesaid aspect.  

The Madras High Court in G.Balaji vs Saravanasamy in CRP (PD) 2182 of 2019 relied upon the following judgments of the said high court in a case reported as MANU/TN/3189/2010 and CRP(PD) (MD) No.1132 of 217 in Rajendra Vs Swaminathan  and Antony Matilda Vs Vairamuthu C.R.P.(PD) (MD) No.1132/2017 it is held that, when the opponent was not given the opportunity to cross examine the proof witness or when the witness avoids cross examination, the evidence of such witness shall not remain on record and if the plaintiff/witness  on several occasions absented himself for cross examination and failed in to subject himself for cross-examination, then his evidence shall not be retained on record and shall be eschewed, otherwise the spirit of adversarial system of law will become meaningless.

The another dimension, in such a situation could also be that as long as the witness was elaborately cross examined on one or two occasions, it may not be necessary to eschew the entire evidence. It's probative value can be looked into at the time of final hearing. The reference in this regard could be have in AIR 1999 SC 1441, in Vidhyadhar Vs Manikrao 2009(4) TLNJ 217 (Civil), D.F.Philips vs. Damayanthi Kailasam and Others; 2016 (4) CTC 158, Thomas and another vs. Thiyagarajan; 2018 (3) TLNJ 717 (Civil).

In Vidhyadhar (Supra) it  is held that:

“16. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurubakhsh Singh Vs Gurdial singh & Anr. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and Ors. AIR (1930) Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhary Vs Radhabai in Krishnarao Deshmukh AIR (1931) Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter Vs Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurubakhsh Singh  case (supra). The Allahabad High Court in Arjun Singh Vs Virender Nath & Anr held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab & Haryana High Court in Bhagwan Das Vs Bishan Chand & Ors , drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box.”

The Madras  High Court in D.F.Philips (Supra) had observed as follows:

“26. In ordinary circumstances, evidence not tested by cross examination has no probative value. There should be an opportunity to the opposite party to cross examine the witness. Things would be different in case the opportunity to cross examine was not availed of by the opposite party. Evidence of a witness given in chief without subjecting such evidence for cross examination on account of death of the witness is also permissible. However, its probative value would be very little.

27. Similarly, question would arise as in the subject case, about the evidence receded inconclusive. The evidence recorded in cases where cross examination was not done completely cannot be discarded altogether. It all depends upon case to case and no uniform rule of general application could be made in such matters. In cases wherein cross examination was practically completed and the witness was not in a position to subject himself for further cross examination on account of illness or otherwise, or on account of other justifiable reasons, the probative value of such evidence has to be considered by the Court. Section 33 of the Evidence Act permits the evidence given by a witness in a judicial proceeding or a later stage of the very same judicial proceeding, the truth of the facts which was elicited during such examination, when the witness was dead or cannot be found or was incapable of giving evidence or in case the witness was kept out of the way by the adverse party. However, the proviso to the said Section also provides that the adverse party in the first proceeding must have the right and opportunity to cross examine him so as to use the evidence so tendered in the subsequent proceeding or in later stage of the same proceeding. Therefore, everything depends upon the peculiar facts of the said case. If the failure to face the further cross examination was involuntary, it stands in a different footing.

28. There is no provision for eschewing the incomplete evidence of a witness. The evidentiary value or probative value of such evidence is a matter to be considered by the trail Court, Situations would arise where on account of the less favourable answers given in the initial stage of cross examination, the witness may avoid the box on subsequent occasions. In such circumstances, the trail Court is justified in forming an opinion about the probative value of such evidence in the peculiar factual background. In all cases where there was no deliberate attempt on the part of the witness to avoid cross examination, evidence would be admissible but its probative value is a matter to be decided by the trail Court. Merely by avoiding further cross examination, it cannot be said that the entire evidence has to be eschewed from consideration. It is always possible for the Court to examine all the surrounding circumstances leading to the avoidance of further cross examination and to come to a definite conclusion as to whether it was deliberate act on the part of the witness.”

Keeping in view the aspects as elucidated above in G Balaji (Supra) it is held as under:

9. All the above cases pertain to incomplete evidence of a defendant's witness. Naturally, the defendant puts down his defense by way of written statement either denying averments made in the plaint as a whole or admitting to certain facts generally or specifically. He lets in evidence to disprove the case projected by the plaintiff and the evidentiary value of the plaint documents. When he underwent cross examination to a considerable extent, but http://www.judis.nic.in could not complete the same due to certain unavoidable circumstances, Courts cannot reject entire evidence, but shall take into consideration its probative value, while deciding the case, more so, when the plaintiff evades or avoids and deliberately delays completion of evidence. On the other hand, a case projected by the plaintiff, shall be based on introduction of facts through plaint averments, supported by oral and documentary evidence. It can be controverted only through cross examination and the veracity of the evidence can be tested by other side. Plaintiff being Dominus litis spearheads the litigation. Onus is more on him to prove the case, unless the burden is shifted to opposite side. In that process he must be ready and prepared and show that he is always available and willing to complete the evidence. In spite of his readiness, if it is shown that the cross examination was avoided or delayed at the instance of the opposite party, in such circumstances, probative value of the available evidence would be taken into consideration”.

11. In any suit, subject to exceptions, Plaintiff being the Dominus litis is bound to prove his case, as observed supra. Particularly in a suit for injunction, http://www.judis.nic.in material evidence, major portion of which, in all probabilities, fall within the personal knowledge of the plaintiff, which plays a predominant role. All other witnesses would corroborate the case of the plaintiff. The evidence of the Plaintiff, as such is very crucial to prove his case. Such evidence shall be complete and it becomes complete only upon completion of cross examination by other side. Holding the precedents and the ratio at the back of the mind, the conduct of the Plaintiff, if seen, admittedly, the materials placed before the court shows that the suit was restored on file after it having been dismissed for default. After having filed the proof affidavit, the Plaintiff had taken his own time to mark the documents. He absented himself for three hearings before marking Exhibits A1- A6 and had taken time to mark further documents, but could not do so, for want of his appearance before the court for three consecutive hearings. An endorsement was by the counsel on his behalf and in his absence that no further marking of documents. The matter was posted for Cross Examination on 03.07.2018 and adjourned due to his non appearance to 06.07.2018 and he was cross examined in part. Again he was absent for three consecutive hearings and cross examined further on 07.09.2018 in part and the matter was adjourned for further cross examination. Again he absented himself for eight consecutive hearings viz., 19.09.2018, 03.10.2018, 09.10.2018, 31.10.2018, 08.11.2018, 21.11.2018 and 04.12.2018. Since he did not appear http://www.judis.nic.in PW1 evidence was closed. It is pertinent to note that on all hearings counsel for both sides were present and participated in proceedings.

What emerges therefore is that the conduct of the Plaintiff is to be seen i.e if plaintiff , after having filed the proof affidavit and after having marked the documents, remained absent for cross examination that may amount to denial of opportunity to the opponent to disprove the claim and render the evidence as complete one. Incomplete evidence of a witness who has failed to subject himself for cross examination shall not be retained on record. Even though there is no provision to eschew the evidence, the evidence of the Plaintiff not tested by cross examination on account of his non appearance, does not even have the probative value, if the incompleteness is attributable to the Plaintiff himself. The evidence can be used at the later stage of the proceeding as well, since, as per Section 33 of Evidence Act entails the evidence to be completed in the eyes of law. Thus, if a witness is allowed to avoid the witness box for cross examination after letting in evidence in chief examination his evidence cannot be retained on record and does not merit consideration, as it will run against the spirit of adversarial system of law.

Thus, the basic rule is that once a witness has examined himself and tendered evidence affidavit without having been cross examined, the evidence cannot be considered, since, the witness has not subjected himself for cross examination, Even when a witness was cross examined at several occasion, but the witness failed to conclude the cross examination, then too such evidence may be eschewed, since, the cross examination could not be completed and therefore, the such evidence cannot have probative value or evidentiary value. However, if the cross examinations are held substantively and the non examination of witness cannot be attributed on him and if it emerges that the other party was instrumental in causing delay, then, the court may still consider the evidence as relevant, since, the witness or any such party who seeks to examine such witnesses cannot be blamed and therefore, the evidence cannot be discarded altogether. The Court in such a situation may take a decision based on the facts and circumstances of the case.

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                                  Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com