O.XI R.5(4) CPC | Right To Cross Examine Is Indispensable, Adverse Inference For Non-Compliance With Orders Can Only Be Drawn At End Of Trial: Karnataka HC

The Karnataka High Court has said that the right to cross-examination, whether or not encoded in statute, emerges as a sine qua non of adjudication. It is not merely permissible, it is an indispensable right.

Justice M Nagaprasanna held thus while upholding an order passed by the Commercial Court dismissing an application filed by the petitioner Sivagami N, seeking the trial court to draw an adverse inference and deny cross-examination to the plaintiffs.

The petitioner's late husband, who was a partner in Vinayaka Travels, died 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.

Other partners in the firm instituted a suit before the Commercial court claiming, inter alia, certain monetary benefits due and payable by the petitioner to the plaintiffs as legal representative of the deceased partner.

Then Sivagami 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 ₹5/- crores to be payable to her.

She also filed an application seeking directions to the plaintiffs in the suit (other partners) to furnish statements 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.

Following that the partners filed another petition seeking to withdraw the suit filed by them. A coordinate Bench of this Court accepting the petition permitted withdrawal of the suit. Therefore, the suit came to be dismissed as withdrawn. However, the counter claim was to proceed. The interim direction so issued would continue to be valid till the disposal is what was directed by the coordinate Bench.

Subsequently the petitioner filed an application for 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.

On going through the records the Commercial Court dismissed the application. Challenging the same it was argued that the accounts of the firm have not been furnished in their entirety. Therefore, 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.

The respondents argued that adverse inference can only be drawn at the end of the trial. There can be no order of denial of cross-examination on the score that adverse inference has been drawn. Further, the right of cross-examination is a valuable right and cannot be taken away on the rebuttal plea of adverse inference as obtaining under the statute.

Findings:

The bench noted that Order XI Rule 5 CPC mandates the production of documents from the hands of the plaintiff. Sub-rule (4) of Rule 5 of Order XI observes that in the event documents are not produced as directed, it is open to the Court to draw an adverse inference.

Then it said “The right to cross-examine is not mere procedural privilege. It is the bedrock of fair hearing, a lodestar in the constellation of natural justice. It is trite law that the right to cross-examine is a valuable right. If a Court were to pass an order taking away the right of cross-examination, it can be only in exceptional circumstances. There is no provision of law in the statute that would permit cross-examination to be denied.”

Further, it observed “The provision available is only to strike off the defence. Striking off the defence can never mean striking off cross-examination. The right to cross-examination is a facet of natural justice. Statute or no statute, right to cross-examine stems from the principles of natural justice and fair opportunity in a trial.”

Dismissing the petition it said “To deny the litigant right of cross examination, would not only become a truncate procedure, but would imperil justice itself. The presumption of adverse inference, like all other presumptions, must avail the moment of judgment and not pre-empt the examination, which would be at the closure of the proceedings i.e., the trial.”

Appearance: Advocate K.B.S Manian for Petitioner.

Senior Advocate Dhananjay V Joshi a/w Advocate Vachan H V for R-1 TO R-3

Citation No: 2025 LiveLaw (Kar) 263

Case Title: Sivagami N AND M/s Vinayaka Travels & Others

Case No: WRIT PETITION No.17796 OF 2025

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