The probative value of evidence from a witness whose cross-examination has not been completed should depend upon the circumstances of each case.

1. This petition under Article 227 of the Constitution of India impugns the orders dated 25th August, 2017 and 8th September, 2017 in CS No.57814/2016 filed by the respondent/plaintiff and in the counter-claim filed therein by the petitioner/defendant in the Court of Additional District Judge (ADJ)-02 (North), Rohini Courts, Delhi.

2. The respondent/plaintiff has instituted the suit, from which this petition arises, for recovery of Rs.71,29,720/- and the petitioner/defendant has filed a counter-claim therein for recovery of Rs.24,80,000/-. The following issues have been framed in the suit and the counter-claim:

“1. Whether the plaintiff is entitled to recover an amount of Rupees seventy one lacs twenty nine thousand and seventy two only along with interest at the rate of eighteen per cent per annum? OPP

2. Whether this Court does not have territorial jurisdiction to entertain this suit? OPD

3. Whether defendant is entitled to counter claim of Rupees twenty four lacs eighty thousand only along with pendentelite and future interest at the rate of twelve per cent? OPD

4. Relief.”

3. The respondent/plaintiff produced PW-1 Sushil Kumar Ratan whose affidavit by way of examination-in-chief was filed and who was also partly cross-examined by the petitioner/defendant.

4. On 25th August, 2017, the counsel for the respondent/plaintiff stated before the Suit Court that PW-1 Sushil Kumar Ratan had left the service of the respondent/plaintiff and will not be produced for further cross-examination. Vide impugned order dated 25th August, 2017, the name of PW-1 Sushil Kumar Ratan was dropped from the list of witnesses and it was further observed that his part examination recorded in the Court shall not be read in evidence as the witness had not completed the test of cross-examination; affidavit by way of examination-in-chief of another witness, namely Arvind Waswani, of the respondent/plaintiff was taken on record.

5. The petitioner/defendant applied for review of the aforesaid order contending that once cross-examination of PW-1 Sushil Kumar Ratan had commenced, the respondent/plaintiff has no prerogative to drop the said witness and the said witness would remain bound to appear till his cross-examination was completed by the Court and he was discharged by the Court. It was further contended that the respondent/plaintiff could not be allowed to bring other witness to depose the same fact which has been deposed by PW-1 Sushil Kumar Ratan in his examination-in-chief and whose cross-examination was incomplete.

6. The learned ADJ, vide impugned order dated 8th September, 2017, dismissed the application for review reasoning (i) that the petitioner/defendant on 25th August, 2017 had not raised any such objection; (ii) that in civil cases, it is the duty of the parties to produce their witness for examination as well as cross-examination and in case any witness fails to complete the test of cross-examination, his testimony is not to be read in evidence and if any witness is not brought by the party calling such witness, then an adverse inference can also be drawn against such party depending upon the facts and circumstances of the case; (iii) that Section 138 of the Evidence Act, 1872, on which reliance was placed, did not provide that a party cannot drop the witness. It was however observed that necessary implications for not producing the witness for cross-examination shall follow in due course of trial.

7. This petition came up first before this Court on 15th September, 2017, when the counsel for the petitioner/defendant sought time to search case law.

8. The counsel for the petitioner/defendant has today referred to:

(A) Lalitha Vs. Sarangadharan Hari MANU/KE/0417/1988 where a Single Judge of the Kerala High Court held in the context of a complaint in a warrant case initiated by the Police that the practice of giving up witnesses after the commencement of chief examination is contrary to Section 138 of the Evidence Act supra and that once a witnes