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KARNATAKA HIGH COURT
M. Nagaprasanna, J.
Sivagami N. – Petitioner
versus
M/s. Vinayaka Travels
A Partnership Firm Registered
under the Partnership Act, 1932
and Ors. – Respondents
Writ Petition No.17796 of 2025 (GM - CPC)
Decided on 30.7.2025
Counsel for the Parties:
For the Petitioner:Sri K.B.S. Manian, Advocate
For the Respondents:Sri Dhananjay V. Joshi, Sr. Advocate a/w Sri Vachan H.V., Advocate for R-1 to R-3
IMPORTANT POINTS
(1) Right to cross-examine – Right of cross-examination is an integral part of principles of natural justice – Right to cross-examine is not mere procedural privilege.
(2) Adverse inference – Denial of inherent right of cross-examination cannot be done on a rebuttable presumption of adverse inference, that can be drawn on a particular fact.
Headnote:
(A) Civil Procedure Code, 1908 – Order XI Rule 5(4) – Right to cross-examine – Right of cross-examination is an integral part of principles of natural justice – Right to cross-examine is not mere procedural privilege – It is bedrock of fair hearing, a lodestar in constellation of natural justice – Right to cross-examine is a valuable right – If a Court were to pass an order taking away right of cross-examination, it can be only in exceptional circumstances – There is no provision of law in statute that would permit cross-examination to be denied – Provision available is only to strike off defence – Striking off defence can never mean striking off cross-examination – Right to cross-examination is a facet of natural justice – Statute or no statute, right to cross-examine stems from principles of natural justice and fair opportunity in a trial. (Paras 11 and 12)
(B) Indian Evidence Act, 1872 – Section 114 – Civil Procedure Code, 1908 – Order XI Rule 5(4) – Adverse inference – Denial of inherent right of cross-examination cannot be done on a rebuttable presumption of adverse inference, that can be drawn on a particular fact – To deny litigant right of cross-examination, would not only become a truncate procedure, but would imperil justice itself – Presumption of adverse inference like all other presumptions, must avail moment of judgment and not pre-empt the examination, which would be at closure of trial – Denial of midstream application to suppress cross-examination on score of procedural lapses is based on sound logic and precedent, warranting no interference at hands of this Court. (Paras 16 and 17)
Result: Petition rejected.
ORDER (CAV)
The petitioner/defendant No.1 is before this Court calling in question an order dated 21-04-2025 by which LXXXV Additional City Civil and Sessions Judge, Bengaluru rejects the application/I.A.No.XXIV filed by the petitioner to draw adverse inference and deny cross-examination to the plaintiffs.
2. Heard Sri K.B.S.Manian, learned counsel for the petitioner and Sri Dhananjay V. Joshi, learned senior counsel appearing for respondents 1 to 3.
3. Facts, in brief, germane are as follows: -
The petitioner’s late husband who was a partner in the 1st respondent/Vinayaka Travels (hereinafter referred to as ‘the firm’ for short) dies on 13-11-2020. The firm had to settle the accounts of the petitioner’s husband after his death. But did not do so, and there was no determination of his share qua the assets of the firm. Respondents 2 and 3/plaintiffs 2 and 3 institute commercial O.S.No.64 of 2022 claiming, inter alia, certain monetary benefits due and payable by the petitioner to the plaintiffs as legal representative of the deceased partner. The petitioner is said to have filed a counter-claim on 01-04-2022 seeking settlement of accounts of the partnership firm as on the date of death of the husband of the petitioner and tentatively claimed Rs.5/- crores to be payable to the petitioner in the counter claim.
3.1. The petitioner files an application in I.A.No.XIII seeking a direction from the Commercial Court directing the plaintiffs to furnish statement of accounts of the plaintiff No.1/firm. The Commercial Court directs production of documents/accounts as sought for. The respondents challenge the said order before this Court in Writ Petition No.22053 of 2022 which comes to be dismissed by upholding the order of the commercial Court and also observing that adverse inference would be drawn against the respondents on account of non-compliance with the order of this Court, which would be withholding the accounts pertaining to the partnership firm. Another writ petition comes to be filed in Writ Petition No.1597 of 2023 by the respondents only to withdraw the suit filed by them. A coordinate Bench of this Court accepting the petition permits withdrawal of the suit. Therefore, the suit comes to be dismissed as withdrawn. This Court however, directed that the counter claim can be proceeded with by the Court. The interim direction so issued would continue to be valid till the disposal is what was directed by the coordinate Bench.
3.2. The petitioner then files an application in I.A.No.XXIV before the concerned Court seeking a direction that the plaintiffs have no right to cross-examine the petitioner/1st defendant on account of adverse inference to be drawn against the plaintiffs. The concerned Court, in terms of the impugned order dated 21-04-2025, rejects the application that adverse inference cannot be drawn midstream, as it is only at the end of the trial. The rejection of the application is what has driven the 1st defendant/ petitioner to this Court in the subject petition.
4. The learned counsel appearing for the petitioner would vehemently contend that the statute recognizes drawing of adverse inference. This Court, had in fact, directed drawing of adverse inference in the event of the documents i.e., the accounts would not be furnished. The accounts have not been furnished in their entirety. He would, therefore, submit that adverse inference must be drawn and the result of drawal of such adverse inference would be denial of cross-examination of 1st defendant by the plaintiffs. He would seek to place reliance upon a judgment of the learned s ingle Judge of this Court in the case of Smt. Jubedabi v. Smt. Jainabi reported in ILR 1974 Kar. 1473.
5. Per contra, learned senior counsel Sri Dhananjay V. Joshi appearing for the respondents 1 to 3 would seek to contend that adverse inference can only be drawn at the end of the trial. There can no order of denial of cross-examination on the score that adverse inference has been drawn. He w
