TaxTMI 
TaxTMI 
2020 (7) TMI 810
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....her documents it was adjourned to 22.02.2018. Again for next three hearings P.W.1 was absent and on 27.06.201, as per endorsement made, it was closed for marking of documents and the matter was posted for cross-examination on 03.07.2018. But P.W.1 was not present and the hearing was adjourned to 06.07.2018, on which day, P.W.1 was cross examined in part and adjourned for further cross continuation. The matter was adjourned to 23.07.2018, 11.08.2018, 29.08.2018 on which dates he was called absent. Again on 07.09.2018, cross- examination was conducted in part and adjourned for continuation of cross-examination on 19.09.2018. The witness absented himself on 19.09.2018, 03.10.2018, 09.10.2018, 31.10.2018, 08.11.2018, 21.11.2018 and 04.12.2018. On 04.12.2018, the evidence of P.W.1 was closed and the suit was posted for further evidence of plaintiff side witnesses on C.R.P.(PD)No.2182 of 2019 13.12.2018 and adjourned as a last chance on 18.12.2018. It is pertinent to note that on all hearings, counsel for both sides were present. 3. The petitioner filed a petition on 18.12.2018 for eschewing the evidence of P.W.1 as he was not subjecting himself for cross examination on several occasion....
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....on the judgments reported in AIR 1999 SC 1441, Vidhyadhar vs. Manikrao; 2009(4) TLNJ 217 (Civil), D.F.Philips vs. Damayanthi Kailasam and Others; 2016 (4) CTC 158, Thomas and another vs. Thiyagarajan; 2018 (3) TLNJ 717 (Civil), G.Saminathan vs. Kalimuthu and others. 6. I have heard the submissions. Facts narrated above are not disputed. 7. Admittedly, the plaintiff had examined himself as P.W.1 and appeared for cross examination on two occasions that too after the Court issued orders for his appearance. Thereafter he failed to show for further cross examination. In fact, same was the case even for marking the document during chief examination. He appeared for hearing to file his proof affidavit on occasion and absented himself for three successive hearings for marking the documents. Later on one occasion he marked six documents viz A1-A6 and thereafter remained absent and did not mark even the remaining plaint documents. 8. Whether the evidence of a witness, who failed to submit himself for cross examination, shall be rejected or not is the moot question in the present case. 9. From the perusal of adjudications of the Trial Court placed before this Court, reveals that after cro....
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....ved as follows: "26. In ordinary circumstances, evidence not tested by cross examination has no probative value. There should be an opportunity to the opposite party to cross examine the witness. Things would be different in case the opportunity to cross examine was not availed of by the opposite party. Evidence of a witness given in chief without subjecting such evidence for cross examination on account of death of the witness is also permissible. However, its probative value would be very little. 27. Similarly, question would arise as in the subject case, about the evidence receded inconclusive. The evidence recorded in cases where cross examination was not done completely cannot be discarded altogether. It all depends upon case to case and no uniform rule of general application could be made in such matters. In cases wherein cross examination was practically completed and the witness was not in a position to subject himself for further cross examination on account of illness or otherwise, or on account of other justifiable reasons, the probative value of such evidence has to be considered by the Court. Section 33 of the Evidence Act permits the evidence given by a witness ....
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.... take into consideration its probative value, while deciding the case, more so, when the plaintiff evades or avoids and deliberately delays completion of evidence. On the other hand, a case projected by the plaintiff, shall be based on introduction of facts through plaint averments, supported by oral and documentary evidence. It can be controverted only through cross examination and the veracity of the evidence can be tested by other side. Plaintiff being Dominus litis spearheads the litigation. Onus is more on him to prove the case, unless the burden is shifted to opposite side. In that process he must be ready and prepared and show that he is always available and willing to complete the evidence. In spite of his readiness, if it is shown that the cross examination was avoided or delayed at the instance of the opposite party, in such circumstances, probative value of the available evidence would be taken into consideration. 10. It is imperative to analyse as to whether such a situation prevailed in the instant case to apply the above ratio. 11. In any suit, subject to exceptions, Plaintiff being the Dominus litis is bound to prove his case, as observed supra. Particularly in a s....
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....le 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 no....