Safiya Malik

The High Court of Karnataka Single Bench of Justice M. Nagaprasanna held that the right to cross-examination is intrinsic to the principles of natural justice and cannot be denied, even where adverse inference is to be drawn under Order XI Rule 5(4) of the Code of Civil Procedure. The Court dismissed a writ petition filed under Article 227 of the Constitution challenging the trial court's refusal to disallow cross-examination of the plaintiffs in a counter-claim proceeding. The petitioner, who is the first defendant in the original suit, had sought an order preventing the plaintiffs from cross-examining her, citing their non-compliance in producing financial documents and the resultant adverse inference.

In its final direction, the High Court affirmed that the rejection of the petitioner’s application by the Commercial Court was legally valid and grounded in sound reasoning. It clarified that the drawing of adverse inference does not equate to curtailing the procedural rights of a party, particularly the right to cross-examine, which stems not only from statutory provisions but also from the broader doctrine of fair trial and due process embedded in natural justice.

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The dispute emerged from a commercial suit initiated by the plaintiffs, who were partners in M/s Vinayaka Travels, following the death of a co-partner. The petitioner, wife of the deceased partner, was named as a defendant. The plaintiffs claimed monetary benefits from the petitioner in her capacity as legal representative of her late husband, who was a partner in the firm.

The petitioner filed a counter-claim, asserting that no settlement of accounts had taken place after her husband’s death on 13-11-2020 and claimed ₹5 crores against the firm. An application (I.A. No. XIII) was filed by the petitioner seeking a direction to the plaintiffs to produce financial documents of the firm, including audited statements and tax returns.

The Commercial Court allowed the application, stating that the plaintiffs had not denied possession of the documents. It observed that directing production of the documents was necessary for adjudicating the controversy. The plaintiffs challenged the order in Writ Petition No.22053 of 2022 before the High Court.

The High Court, while upholding the trial court’s directive, stated: “The petitioners must produce the documents, but if they fail to produce the documents, the consequence would be statutory because of the provisions of Order XI Rule 5(4) of CPC.” It further held that adverse inference could be drawn in case of non-compliance.

Subsequently, the plaintiffs sought to withdraw the suit through another writ petition (W.P. No.1597 of 2023). The Court allowed withdrawal while clarifying that the petitioner’s counter-claim would continue. It also maintained that interim orders favourable to the petitioner would remain in effect.

Thereafter, the petitioner filed I.A. No. XXIV in the Commercial Court seeking a direction that the plaintiffs be denied the right to cross-examine her, arguing that adverse inference had already been ordered due to the plaintiffs’ failure to produce documents.

The Commercial Court dismissed the application, holding that adverse inference can only be drawn after the trial and upon appreciation of evidence. Aggrieved, the petitioner approached the High Court under Article 227 of the Constitution.

Justice M. Nagaprasanna began by noting that “adverse inference can be drawn only after trial is completed and evidence is being appreciated and not at this stage when D.W.1 is yet to be subjected to cross-examination.”

Referring to Order XI Rule 5(4) CPC, the Court stated: “In the event documents are not produced as directed, it is open to the Court to draw an adverse inference.” However, it stated that this provision does not extend to denial of cross-examination.

The Court held that “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 stated that the right is a facet of due process and that denial is permissible only in exceptional circumstances.

The Court cited the Supreme Court’s decision in Ayaaubkhan Noorkhan Pathan v. State of Maharashtra (2013) 4 SCC 465, stating: “The right of cross-examination is an integral part of the principles of natural justice.” It added that unless prejudice is caused by denial of cross-examination, such denial cannot stand legal scrutiny.

The Court further referred to Noor Mohammed v. Khurram Pasha (2022 SCC OnLine SC 956), where the Apex Court held that even statutory non-compliance under Section 143A of the Negotiable Instruments Act cannot be grounds to deny cross-examination. The Karnataka High Court quoted: “Any such order foreclosing the right would not be within the powers conferred upon the court and would, as a matter of fact, go well beyond the permissible exercise of power.”

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Addressing the timing of drawing adverse inference, the Court relied on Aparna Ajinkya Firodia v. Ajinkya Arun Firodia (2024) 7 SCC 773 and Union of India v. Ibrahim Uddin (2012) 8 SCC 148. It reiterated: “Adverse inference being a presumption, can only be drawn at the time of trial qua the facts of each case, as it would require evidence and appreciation of evidence.”

In conclusion, the Court recorded: “To deny the litigant right of cross-examination, would not only become a truncate procedure, but would imperil justice itself.” It found no fault in the Commercial Court’s reasoning.

The High Court declined to interfere with the Commercial Court’s order and upheld the rejection of the application filed under Section 151 CPC seeking to deny cross-examination.

The judgment concluded: “Therefore, the Commercial Court’s order rejecting the application in I.A.No.XXIV is far from errant, is firmly moored in law.” It added: “The denial of a midstream application to suppress cross-examination on the score of procedural lapses is based on sound logic and precedent, warranting no interference at the hands of this Court.”

The writ petition was thus rejected, with the High Court stating: “Finding no merit in the petition, the petition stands rejected.”

Advocates Representing the Parties:

For the Petitioner: Sri K.B.S. Manian, Advocate

For the Respondents: Sri Dhananjay V. Joshi, Senior Advocate with Sri Vachan H.V., Advocate

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

Case Number: Writ Petition No.17796 of 2025 (GM - CPC)

Bench: Justice M. Nagaprasanna