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2020 (7) TMI 810 - MADRAS HIGH COURTViolation of principles of natural justice - cross-examination of witnesses - petition filed for eschewing the evidence of a witness for not submitting himself for continuation of cross-examination - Whether the evidence of a witness, who failed to submit himself for cross examination, shall be rejected or not? - HELD THAT:- From the perusal of adjudications of the Trial Court placed before this Court, reveals that after cross examination in part on 07.09.2018, the case was adjourned for continuation of cross examination on six occasions. On all these hearings, in spite of the direction to be present, the witness failed to appear before the Court. Unless there is necessity for cross examination, the case would not have been adjourned several times. Even assuming that the elaborate cross examination was made, the evidence should have been closed on that date itself. Nobody can presume that there will not be any surprise element till closing of the evidence. Surprisingly admissions as to facts may pop up even at the end of the examination of 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 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. The conduct of the Plaintiff, after having filed the proof affidavit and marked the documents, remaining absent for cross examination will amount to denial of opportunity to the opponent to disprove the claim and render the evidence as complete one - the plaintiff in the instant case, who could not appear before the court on the ground that his employer refused to grant leave for months and in fact years together, is not entitled to any equitable treatment and his evidence cannot retained for considering its probative value. Even though it is countered by the respondent/Plaintiff that extensive cross examination has been done, it is relevant to note that the learned judge has not chosen to consider or accept the same and has not observed as such. If it is true that extensive cross examination has already been made, the matter need not have been adjourned for about seven hearings for continuation of cross examination. Petition allowed.
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