Appeal against one defendant and adverse inference for silence in the witness box upheld on facts within special knowledge.

A plaintiff may maintain an appeal against dismissal of the suit as to one defendant even where relief was decreed against a co-defendant, if the pleadings and relief claim show a joint, several or alternative right to relief arising from the same transaction. Here, the suit and relief clause targeted both defendants, so the appeal against the appellant was maintainable. A party who withholds himself from the witness box on facts within his special knowledge may attract an adverse inference under Section 114 of the Evidence Act. As the appellant did not testify and the co-defendant supported the plaintiff's version, the adverse inference was properly drawn and the decree against him stood upheld.

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Issues: (i) whether the plaintiff could maintain an appeal against the appellant after the trial court decreed the suit only against the co-defendant; (ii) whether an adverse inference could be drawn against the appellant for not entering the witness box and whether the High Court was justified in decreeing the suit against him.

Issue (i): Whether the plaintiff could maintain an appeal against the appellant after the trial court decreed the suit only against the co-defendant.

Analysis: A plaintiff who claims relief against more than one defendant on the basis of the same transaction may join them in one suit where the right to relief is alleged to exist jointly, severally or in the alternative, and where common questions of law or fact arise. The pleadings and the relief clause showed that the plaintiff had claimed a decree against both defendants, realisable from either of them, and the suit related to one transaction in which both were involved. If the trial court granted relief only against one defendant and dismissed the suit against the other, the plaintiff was entitled to challenge that part of the decree in appeal.

Conclusion: The appeal against the appellant was maintainable and the plaintiff was entitled to seek a decree against him.

Issue (ii): Whether an adverse inference could be drawn against the appellant for not entering the witness box and whether the High Court was justified in decreeing the suit against him.

Analysis: The appellant did not step into the witness box to support the case set out in his written statement, although the transaction and the defence depended materially on facts within his personal knowledge. The evidence of the co-defendant on oath stated that the cheque was issued at the appellant's instance and was encashed by him. In such circumstances, the court was entitled to draw an adverse inference under Section 114 of the Evidence Act. The appellant's silence therefore supported the plaintiff's version and displaced the trial court's view that the appellant was not liable.

Conclusion: The adverse inference was properly drawn and the decree against the appellant was upheld.

Final Conclusion: The High Court's decree against both defendants stood affirmed, and the appellant's challenge failed.

Ratio Decidendi: Where a plaintiff's pleaded cause of action and relief are directed against multiple defendants arising from the same transaction, an appeal lies against dismissal of the suit as to one defendant even if it is decreed against another; further, a party who withholds himself from the witness box in respect of facts within his special knowledge may suffer an adverse inference under Section 114 of the Evidence Act.

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