1. Civil revision challenging trial court order scrapping plaintiff's evidence for failure to appear for cross-examination. (Para 1 , 2 , 3 , 4 )
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2026 Supreme(Online)(Mad) 32363
IN THE HIGH COURT OF JUDICATURE AT MADRAS
N.Senthilkumar, J
S. Shannugam – Appellant
Versus
Dhanabackiyam – Respondent
CRP(MD). No.3941 of 2025|CMP(MD).No.20588 of 2025
Important Points
A trial court is empowered to close the evidence of a party if a witness fails to appear for cross-examination, but it is not justified in scrapping the evidence altogether; a final opportunity for cross-examination should be granted to ensure a fair trial.
Subject
Civil - Procedural Law
Act Referred
Headnote
(A) Civil Procedure - Evidence - Scrapping of Witness Evidence - Trial Court cannot scrap the evidence of a witness altogether solely for non-appearance for cross-examination, although it is empowered to close the evidence of the party. (Para 8)
(B) Adversarial System - Examination of Witness - While evidence not subjected to cross-examination may lack probative value, the court should provide reasonable opportunity before taking extreme measures to discard recorded evidence. (Para 5, 8)
Issues: Whether the trial Court is empowered to scrap the evidence of PW1 for non-subjection to cross-examination despite granting several opportunities?
(B) Adversarial System - Examination of Witness - While evidence not subjected to cross-examination may lack probative value, the court should provide reasonable opportunity before taking extreme measures to discard recorded evidence. (Para 5, 8)
Issues: Whether the trial Court is empowered to scrap the evidence of PW1 for non-subjection to cross-examination despite granting several opportunities?
Legal Category Hierarchy
Advocates:
For the Appellants/Petitioners: Mr.N.Sudhagar Nagaraj
For the Respondents: Mr.S.Simiyon Vargin
For the Appellants/Petitioners: Mr.N.Sudhagar Nagaraj
For the Respondents: Mr.S.Simiyon Vargin
Table of Contents
2. Petitioner argued scrapping evidence was extreme; respondent argued petitioner failed to cross-examine despite multiple opportunities given the suit's long pendency. (Para 5 , 6 )
3. Trial court may close evidence but cannot scrap it entirely for a witness failing to appear for cross-examination. (Para 7 , 8 )
4. A court may close evidence but cannot altogether scrap it for non-appearance for cross-examination as that denies probative value. (Para 8 )
5. Revision petition disposed; trial court order set aside; one final opportunity granted for cross-examination; suit to be disposed within one year. (Para 9 )
6. Can a trial court scrap a witness's evidence altogether for failing to appear for cross-examination?
No, a court may close evidence but is not justified in scrapping it entirely as the evidence retains no probative value. (Para 7 , 8 )
7. What is the consequence of a plaintiff failing to appear for cross-examination after filing a proof affidavit?
The evidence becomes incomplete and cannot be retained on record; the court may close the evidence but cannot scrap it. (Para 5 , 7 , 8 )
PRAYER :-Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the docket orders dated 04.08.2025 and 28.08.2025 passed in O.S.No.371/2022 on the file of the District Munsif cum Judicial Magistrate, Thottiyam, Tiruchirappalli District.
ORDER
This civil revision petition has been filed to set aside the docket orders dated 04.08.2025 and 28.08.2025 passed in O.S.No.371/2022 on the file of the District Munsif cum Judicial Magistrate, Thottiyam, Tiruchirappalli District.
2.Hear the learned counsel on either side and perused the records.
3.The present revision petition has been filed challenging the docket order passed by the trial Court. The learned counsel for the revision petitioners drew the attention of this Court to the docket proceedings dated 11.07.2023, which are extracted hereunder:
“11.07.2023 – D3 present and plaintiff present. Proof affidavit filed and recorded examined as PW1. Ex.A1 to Ex.A10 were marked and at request for cross of PW1 adjourned to 19.07.2023.”
as well as the subsequent proceedings, dated 12.10.2023
“12.10.2023 – D3 present. PW1 is present and cross examined partly. For cross of PW1 at request adjournment to 14.11.2023.”
and 28.08.2025.
“28.08.2025 – PW1 not turned up for cross examined, hence evidence of PW1 is scrapped. For further PWs if any call on 24.09.2025.”
4.It is seen that the trial Court, on the ground that PW1 did not present himself for cross-examination, proceeded to scrap the evidence of PW1.
Challenging the same, the present Civil Revision Petition has been filed.
5.The learned counsel for the revision petitioner submitted that, though the Court is empowered to close the evidence if a witness does not present himself for cross-examination, the trial Court has taken an extreme view in scrapping the evidence altogether. In support of this contention, reliance was placed on the judgment of this Court made in the case of G.Balaji and another Vs. Saravananamy in C.R.P.(PD).No.2182 of 2019, particularly paragraph 12, which is extracted hereunder:
12. The above 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. As held by this Court in Rajendran’s case as well as Metilda’s (supra) incomplete evidence of a witness who has failed to subject himself for cross examination shall not be retained on record. Even though there is no provision to eschew the evidence, the evidence of the Plaintiff in the above case, not tested by cross examination on account of his non appearance, does not even have the probative value, for, the incompleteness is attributable to the Plaintiff himself. The further contention of the respondent that the evidence can be used at the later stage of the proceeding as per Sec. 33 of Evidence Act is also not sustainable for the reason the evidence herein is not the complete evidence in the eyes of law. As contended by the learned Senior Counsel for the petitioner, if a witness is allowed to avoid the witness box for cross examination after letting in evidence in chief examination his evidence cannot be retained on record and does not merit consideration. If such an evidence of a defaulting, delaying, clever or crooked and cunning witnesses is taken for consideration, it will run against the spirit of adversarial system of law. Thus, 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 tha
