Whether case put forth by party can be believed if he fails to put his essential and material case in cross examination?

The law is clear on the subject. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses. It has been stated on high authority of the House of Lords that this much a counsel is bound to do when cross-examining that he must put to each of his opponent's witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. If he asks no question with regard to this, then he must be taken to accept the plaintiff's account in its entirety. Such failure leads to miscarriage of justice, first by springing surprise upon the party when he has finished the evidence of his witnesses and when he has no further chance to meet the new case made which was never put and secondly, because such subsequent testimony has no chance of being tested and corroborated.

IN THE HIGH COURT OF CALCUTTA

A.F.O.D. No. 80 of 1958

Decided On: 17.05.1960

 A.E.G. Carapiet Vs. A.Y. Derderian

Hon'ble Judges/Coram:

P.B. Mukharji and H.K. Bose, JJ.

Citation: AIR 1961 Cal 359

Print Page

Whether testimony of witness will be deemed to be admitted if he was not cross examined properly?

 Mr Tidke denied all the adverse suggestions given to him in his cross-examination by the Union. However, case sought to be made out in the written statement by the Union making allegations against the appellant-Mill was never put to Mr. Tidke when he was under cross-examination. The law in this behalf is clear. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in the cross- examination, it must follow that he believed that the testimony could not be disputed at all. It is wrong to think that this is essentially a technical rule of evidence. It is rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice because it gives notice to the other side of actual case that is going to be made out when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses. It has been stated on high authority of the House of Lords that this much a counsel is bound to do while cross-examining that he must put to each of his opponent's witnesses in turn, so much of his own case as concerns that particular witness or in which that witness has any share. If he asks no question with regard to this, then he must be taken to have accepted the opponents case in its entirety. (see A.E.G. Carapiet v. A.Y.Derderian AIR 1961 Cal 539; Sarwansing v. State of Punjab MANU/SC/0868/2002 : 1995CriLJ3630 ).

IN THE HIGH COURT OF BOMBAY

Appeal Nos. 364 and 441 of 2005 in Writ Petition No. 1097 of 2004

Decided On: 11.06.2007

Hindoostan Spg. and Wvg. Mills Ltd. Vs.  Hindustan Crown Mills Siddhivinayak Kamgar Karmachari Sangharsha Sanghatana 

Print Page

What will be effect of non cross examination of witness with respect to particular fact?

Moreover, there was no effective cross-examination made on the plaintiff’s
witnesses with respect to factum of execution of sale deed, PW.1 and PW-2 have not
been cross examined as to factum of execution of sale deed. The cross-examination is a
matter of substance not of procedure one is required to put one’s own version in crossexamination
of opponent. The effect of non cross-examination is that the statement of
witness has not been disputed. The effect of not cross-examining the witnesses has been
considered by this Court in Bhoju Mandal & Ors. v. Debnath Bhagat & Ors. AIR 1963
SC 1906. This Court repelled a submission on the ground that same was not put
either to the witnesses or suggested before the courts below. Party is required to
put his version to the witness. If no such questions are put the court would presume that
the witness account has been accepted as held in M/s. Chuni Lal Dwarka Nath v.
Hartford Fire Insurance Co. Ltd. & Anr. AIR 1958 Punjab 440. In Maroti Bansi Teli v.
Radhabai w/o Tukaram Kunbi & Ors. AIR 1945 Nagpur 60, it has been laid down that
the matters sworn to by one party in the pleadings not challenged either in pleadings orcross-examination by other party must be accepted as fully established. The High Court
of Calcutta in A.E.G. Carapiet v. A.Y. Derderian AIR 1961 Cal. 359 has laid down that

the party is obliged to put his case in cross-examination of witnesses of opposite party.
The rule of putting one’s version in cross-examination is one of essential justice and not
merely technical one. A Division Bench of Nagpur High Court in Kuwarlal Amritlal v.
Rekhlal Koduram & Ors. AIR 1950 Nagpur 83 has laid down that when attestation is not
specifically challenged and witness is not cross-examined regarding details of
attestation, it is sufficient for him to say that the document was attested. If the other side
wants to challenge that statement, it is their duty, quite apart from raising it in the
pleadings, to cross-examine the witness along those lines. A Division Bench of Patna
High Court in Karnidan Sarda & Anr. v. Sailaja Kanta Mitra AIR 1940 Patna 683 has
laid down that it cannot be too strongly emphasized that the system of administration of
justice allows of cross-examination of opposite party’s witnesses for the purpose of
testing their evidence, and it must be assumed that when the witnesses were not tested in
that way, their evidence is to be ordinarily accepted. In the aforesaid circumstances, the
High Court has gravely erred in law in reversing the findings of the first Appellate Court

as to the factum of execution of the sale deed in favour of the plaintiff.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4816 OF 2016

Muddasani Venkata Narsaiah V  Muddasani Sarojana

Citation:(2016) 12 SCC 288

Print Page

How to appreciate evidence if opponent fails to put up his essential and material case in cross-examination?

The testimony of PW-1 is not contradicted or undermined. No suggestion is put to PW-1 that his deposition regarding the contract of guarantee and/or the further particulars he was called upon to provide regarding the contract of guarantee were false.

Likewise no suggestion is put to PW-1 that there was no supplies made to M/s. Umesh Enterprises or its customers. This is extremely pertinent given the defence taken by the defendant in the written statement. There is no cross-examination of PW-1 as to how he came into possession of the aforementioned security cheque (Exhibit P-8) though it is the case of the defendant that PW-1 misappropriated the said cheque. This is of significance given the nature of the allegations raised by the defendant against the plaintiff in paragraph 18 of the written statement. The failure to confront PW-1 with the defendant's affirmative case must go against the defendant. In MANU/WB/0074/1961 : AIR 1961 Cal 359 A.E.G Carapiet v. A.Y. Derderian paras 8 & 9 read as under :-

"8. Failure to put the important and crucial part of the case to the witnesses coming to prove testamentary capacity must be held against the respondents. It is all the more so because the case of witness Venkat Ramiah is that as early as in October, 1956 he had told this story at Poona to Mr. Aratoon and the learned Counsel Mr. Ganguli. If that was so, then there can be no doubt that this case would have been put to the doctors and nurses who were being examined on commission in Poona itself. It is also strange why then the Respondents did not have the evidence of this witness Venkata Ramiah immediately on commission at Poona and why he was kept up the sleeves to be played as a last trump as a last witness in the case when the entire evidence on the case of the propounder had been made and concluded. Lastly this course is all the more reprehensible here because witness Venkat Ramiah admits that on all his visits to the testator's room in the nursing home he found the wife present (Q.81) and if that is so then if the wife was put that case she might have denied but by keeping back this case from her, she was denied the necessary opportunity to do so, leading to failure of justice in this case.

9. The law is clear on the subject. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses. It has been stated on high authority of the House of Lords that this much a counsel is bound to do when cross-examining that he must put to each of his opponents witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. If he asks no question with regard to this, then he must be taken to accept the plaintiff's account in its entirety. Such failure leads to miscarriage of justice, first by springing surprise upon the party when he has finished the evidence of his witness and when he has no further chance to meet the new case made which was never put and secondly, because such subsequent testimony has no chance of being tested and corroborated."

IN THE HIGH COURT OF BOMBAY

Suit No. 1947 of 2008

Decided On: 07.12.2016

 Vinergy International Pvt. Ltd. Vs. Dimple Dineshbhai Shah

Coram:K.R. Shriram, J.

Citation: 2017(1) ALLMR581

Print Page