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This Civil Revision Petition is directed against the order passed by the Trial Court dismissing the petition filed for eschewing the evidence of a witness for not submitting himself for continuation of cross-examination http://www.judis.nic.in
2. Defendant is the Revision Petitioner. Respondent/Plaintiff in this revision filed a suit for permanent injunction in the year 2013. The suit was dismissed for default and restored on application filed by him in the year 2017. During trial the plaintiff examined himself as P.W.1. On 26.10.2017 the plaintiff filed a proof affidavit and the matter was posted for marking documents on 09.11.2017. On three occassions, subsequent to that, he was absent and on two occassions he was present but the matter was adjourned. At last on 05.02.2018, Ex.A1- A6 were marked and for marking of other documents it was adjourned to 22.02.2018. Again for next three hearings P.W.1 was absent and on 27.06.201, as per endorsement made, it was closed for marking of documents and the matter was posted for cross-examination on 03.07.2018. But P.W.1 was not present and the hearing was adjourned to 06.07.2018, on which day, P.W.1 was cross examined in part and adjourned for further cross continuation. The matter was adjourned to 23.07.2018, 11.08.2018, 29.08.2018 on which dates he was called absent. Again on 07.09.2018, cross- examination was conducted in part and adjourned for continuation of cross-examination on 19.09.2018. The witness absented himself on 19.09.2018, 03.10.2018, 09.10.2018, 31.10.2018, 08.11.2018, 21.11.2018 and 04.12.2018. On 04.12.2018, the evidence of P.W.1 was closed and the suit was posted for further evidence of plaintiff side witnesses on http://www.judis.nic.in 13.12.2018 and adjourned as a last chance on 18.12.2018. It is pertinent to note that on all hearings, counsel for both sides were present.
3. The petitioner filed a petition on 18.12.2018 for eschewing the evidence of P.W.1 as he was not subjecting himself for cross examination on several occasions and evaded to answer questions by cross-examination. The Trial Court dismissed the petition on the ground that the witness was present on two hearing and cross examination was made and hence presumption is available u/s. 114 of Evidence Act. Therefore, dismissed the petition as it is not necessary to reject the above evidence observing that the petition has been filed with an intention to drag on the proceedings.
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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.”
13. Further it is submitted by the counsel appearing for both sides that after closing the evidence of PW1, Plaintiff’s side evidence has been continued and as of now PW 3 examination itself is over. Had the Plaintiff was keen to complete his evidence, he would have offered himself for cross examination by re-opening and recalling his evidence. The conduct of his clearly shows that he was and is not very keen in doing so. In such an event the incomplete evidence of the Plaintiff shall not remain on record and it shall be eschewed. In that view of the matter the order of the court below in dismissing the petition for http://www.judis.nic.in eschewing the evidence is not sustainable.