Adverse Inference Must Be Drawn Where Party Fails to Enter Witness Box or Face Cross-Examination

The appellant (plaintiff) and respondent (defendant) are brothers. The appellant filed a partition suit in 2018 seeking separate possession of joint family property, alleging that a prior Memorandum of Partition dated 20.10.1994 was fraudulent and never acted upon.

The respondent contended that a valid partition occurred in 1994, subsequent mutations were done, and the parties had been living separately for over two decades.

During the trial, the appellant filed an evidentiary affidavit but failed to present himself for cross-examination and did not cross-examine the respondent’s witnesses.

Consequently, the Sub-Judge X, Hajipur dismissed the suit on 30.01.2023, leading to this appeal.

1. Whether the trial court’s decision on Issue No. (vii) regarding the plaintiff's entitlement to a half-share was legally sound despite the plaintiff's failure to undergo cross-examination.

2. Whether an adverse inference should be drawn against a party who files an affidavit but refuses to be cross-examined.

The court primarily applied Section 2(1)(e) and Section 119(1)(g) [Illustration (g)] of the Bharatiya Sakshya Adhiniyam, 2023 (corresponding to Sections 3 and 114(g) of the Indian Evidence Act), which mandates that evidence not produced or withheld is presumed to be unfavourable to the person withholding it.

Order XVIII Rule 4 and Order XIX Rules 1-3 of the CPC, which require evidence by affidavit to be tested by cross-examination.

Precedents in Ramji Jankiji v. Mauni Baba Kale Kambalwala [AIR 1978 PAT 48] and Vidhyadhar v. Manikrao [1999 SCC OnLine SC 294], establishing that if a party does not enter the witness box, a presumption arises that their case is incorrect.

The court reasoned that while Order XVIII Rule 4 permits examination-in-chief via affidavit, such statements do not constitute legal "evidence" unless the deponent is available for cross-examination to test the veracity of the claims.

The appellant effectively "withheld" the best evidence by avoiding the witness box, triggering the presumption under Section 119(1)(g) of the BSA that his testimony would have been unfavourable to his own case.

The court observed that the appellant’s failure to cross-examine the respondent meant the respondent’s evidence remained unrebutted and was deemed admitted.

The court found that the appellant did not discharge the burden of proof required under Section 104 of the BSA to prove the alleged fraud in the 1994 partition.

The Court held that when a plaintiff fails to offer himself for cross-examination, his affidavit is liable to be eschewed and rendered inadmissible.

The final holding affirmed the Judgment dated 30.01.2023 and Decree dated 13.02.2023, dismissing the appeal without costs.