Party must step into witness box to prove its case

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Shubham Budhiraja[1]

 

A filed a suit for Partition against B. The Ld. It is the case of the Plaintiff that his grandfather had 2 sons, X&Y. The X had 2 wives, P&Q.  The first wife, P is the mother of A. The Second Wife, Q and his son, B are the Defendants. Based on change in revenue entries, B declined to acknowledge A’s joint possession in the property. To demand his share, A filed the Partition Suit. The Trial Court dismissed the suit whereas High Court in first appeal allowed the suit. Hence, Supreme Court. The Hon’ble Supreme Court held as under:

 

1.    In the present case, there is a paucity of documentary and contemporaneous material to conclusively establish the marital relationship between the deceased and the mother of the plaintiffs.

 

2.    The testimony of P.W.2 is the sole evidence adduced in support of the existence of such a relationship. Accordingly, the evidentiary value of the testimony of the P.W.2 must be examined in light of the principles laid down under Section 50 of the Indian Evidence Act 1872.

 

3.    That Section 50 of the Evidence Act makes provision regarding “Opinion on relationship, when relevant

 

4.    Though P.W.2 does not expressly affirm or refer to the genealogical chart, his testimony neither deviates from nor contradicts the familial relationships outlined therein. On the contrary, his account is broadly consistent with the structure depicted in the chart. P.W.2 stated with familiarity regarding the plaintiffs’ descent and inter se relationships within the family

 

5.    The Defendant, though physically present in the Court during the trial, abstained from stepping into the witness box to rebut the plaintiffs’ assertions — assertions that strike at the very core of the dispute. In the absence of cogent medical evidence to support her alleged incapacity, her abstention from the witness box constitutes deliberate circumvention of the evidentiary burden resting upon her

 

6.    In civil proceedings, particularly where the facts lie exclusively within the personal knowledge of the party, the refusal to enter the witness box carries grave evidentiary consequences.

 

7.    Order XXVI, Rule 1 of the Code of Civil Procedure, 1908, permits the recording of evidence through a commission in cases of age or infirmity. Yet, no application was filed invoking the said provision, nor was any explanation tendered for its non-invocation.

 

8.    In a dispute where the foundational facts lie squarely within her exclusive knowledge, such omission assumes critical significance. Her refusal to depose, despite the existence of a procedural safeguard specifically tailored to her alleged condition, cannot be dismissed as inadvertent. Rather, it reflects a conscious evasion from the evidentiary process, compounded by her unexplained failure to avail an accessible legal alternative, is not a neutral act. It constitutes wilful shielding from judicial scrutiny.

 

9.    Where a party to the suit does not appear in the witnessbox 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


[1] Advocate, Delhi High Court [LLB, ACS, BCOM(H)], Budhirajalawchambers@gmail.com , +91-9654055315

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