Plaintiff's Failure To Enter Witness Box Draws Rebuttable Presumption, Not Fatal To Suit If Rebutted By Cogent Evidence: Supreme Court

"The adverse presumption, if any, drawn for non-appearing in the witness box by the plaintiff, is a rebuttal presumption and if the aforesaid presumption is successfully rebutted by the other cogent evidence on record, the said presumption would not be material and applicable," Supreme Court, in a significant ruling, held that a plaintiff's failure to step into the witness box creates only a rebuttable adverse presumption, which is not fatal to a civil suit if successfully countered by other cogent evidence.

A bench of Justice Pankaj Mithal and Justice Prasanna B. Varale observed that a manager or representative possessing personal knowledge of the transactions can validly depose on behalf of the principal to prove the case. The Court was dealing with a specific performance suit where the defendants challenged the decree primarily on the ground that the original plaintiff never testified to prove his readiness and willingness to execute the contract.

The dispute originated from an unregistered agreement to sell agricultural land executed in 1988 between the plaintiff and the defendant company. Following the defendants' alleged failure to appear before the Sub-Registrar on the mutually extended final date, the plaintiff filed a suit for specific performance. The trial court declined specific performance and ordered a refund, but the First Appellate Court reversed this finding and decreed the suit entirely. The High Court upheld the decree in a second appeal, prompting the defendants to approach the Supreme Court.

The primary question before the court was whether the non-appearance of the plaintiff in the witness box is fatal to a suit for specific performance. The court was also called upon to determine the effect of property transfers made during the pendency of the litigation under Section 52 of the Transfer of Property Act, and whether the High Court ought to have reappreciated findings of fact under Section 100 of the Code of Civil Procedure.

Scope Of Interference Under Section 100 CPC

The Supreme Court firmly rejected the defendants' contention that the High Court should have reappreciated the evidence to verify the First Appellate Court's findings on the plaintiff's readiness and willingness. The bench noted that findings of fact, howsoever erroneous, cannot be reopened and disturbed in a second appeal under Section 100 of the CPC. The Court emphasized that such interference is only permissible when a substantial question of law arises. Relying on precedents like Bholaram v. Ameerchand and Kashibai v. Parwatibai, the bench noted that a second appeal does not lie merely on the ground of erroneous findings of fact based on the appreciation of evidence.

Adverse Inference From Non-Appearance Is Rebuttable

Addressing the pivotal argument regarding the plaintiff's failure to testify, the Court acknowledged the established legal principle that when a party avoids the witness box, an adverse inference can be drawn. Citing the precedent in Vidhyadhar v. Manikrao, the bench noted that such conduct generally gives rise to a presumption that the case set up by the party is incorrect. However, the Court clarified that this is strictly a rebuttable presumption rather than an absolute bar to granting relief. The bench observed that if this presumption is successfully countered by other reliable evidence on record, the non-appearance of the plaintiff ceases to be fatal to the suit.

Manager With Personal Knowledge Can Depose

In the present case, the Court found that the adverse inference was successfully rebutted by the testimony of the plaintiff's manager, who appeared as a key witness. The bench noted that the manager had been working with the plaintiff since the inception of the agreement and possessed personal knowledge of all relevant transactions, including the payment of consideration and extension of time. Applying the rationale from Rajesh Kumar v. Anand Kumar and Janki Vashdeo Bhojwani v. Indusind Bank Ltd., the Court held that a representative can validly depose on behalf of the principal regarding acts strictly within their personal knowledge.

Passage Of Time Does Not Automatically Defeat Specific Performance

The Court also dismissed the defendants' argument that the grant of specific performance had become inequitable due to the immense escalation of land prices over the 15-year gap between the agreement and the appellate decree. The bench observed that discretionary equitable relief cannot be denied in a vacuum merely based on the passage of time. The Court pointed out that the defendants failed to bring any concrete evidence on record to establish the alleged price escalation or to prove that granting the decree would cause undue inequity.

Transfers Pendente Lite Subservient To Final Decree

Dealing with the subsequent sale of the suit property by the defendants to third parties during the pendency of the litigation and the appeal, the Court invoked the doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882. Placing reliance on Thomson Press (India) Ltd. v. Nanak Builders & Investors (P) Ltd., the bench reiterated that transfers pendente lite are neither illegal nor void ab initio. However, the Court clarified that such transfers remain entirely subservient to the rights of the parties as eventually determined by the court in the pending litigation.

"The sale deeds executed by the defendants during the pendency of the litigation are certainly hit by doctrine of lis pendens and are non est."

The Supreme Court dismissed the appeal and upheld the decree of specific performance granted in favor of the plaintiff. The Court declared the subsequent sale deeds executed by the defendants in 2009 and 2025 as non est, noting that substantive rights had already accrued to the plaintiff's heirs who had rightfully secured a sale deed through due process of law.

Date of Decision: 09 April 2026