Supreme Court of India· 29 September 2026

Does inconsistent or evasive testimony of defence witnesses lead to a finding in favour of the plaintiff?

Bombay Garage Ahmedabad Limited & Ors v. J P Iscon Private Ltd. & Anr

2026 INSC 1066 · Special Leave Petition (C) No.25909 of 2024
Coram: Justice J. B. Pardiwala · Justice K. Vinod Chandran

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Answer

Inconsistent or evasive testimony of defence witnesses does not, as a corollary, lead to a finding in favour of the plaintiff.

No. The proof of a concluded contract has to be furnished by the plaintiff and established unequivocally. However recalcitrant the conduct of the defence witnesses in the box, that cannot lead to an inference of a concluded contract, and no adverse inference against the defendants follows merely from their evasive stance.

Headnote

Code of Civil Procedure, 1908 — Order II Rule 2 — Suit for specific performance — Oral agreement — Concluded contract — Pleadings — Code of Civil Procedure, 1908 — Order II Rule 2 — Fresh suit for specific performance — Leave at first suit — Held: A fresh suit for specific performance is barred by Order II Rule 2 where the relief was available when the first suit for injunction was instituted and no leave was then taken; a fresh suit permitted after withdrawal covers only the injunction. (¶11, 23, 27) Code of Civil Procedure, 1908 — Order II Rule 2(3) — Cause of action — Earlier plaint — Held further: The bar in Order II Rule 2(3) is a technical plea that must be established satisfactorily and cannot be presumed by inferential reasoning; identity of the cause of action with the earlier suit must be shown from the earlier plaint. (¶8, 9, 10) Code of Civil Procedure, 1908 — Oral agreement — Specific performance — Strict proof — Held further: A suit for specific performance can rest on an oral agreement, but a concluded contract must be proved strictly. Inconsistent pleadings and interested testimony are not sufficient proof, and evasive defence witnesses cannot lead to an inference of a concluded contract. (¶3, 34, 36) Code of Civil Procedure, 1908 — Order II Rule 2 — Concluded oral contract not proved — Appeal allowed — On facts, held: No concluded oral contract was proved and the second suit was barred. Appeal allowed; orders of the Trial Court and the High Court set aside and the suit dismissed. (¶27, 39, 40)

Headnote

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In the Court's own words

Paragraph 36Insofar as PW3 is concerned, he does not have any direct knowledge of what happened and his deposition is to the effect that the meeting conducted thereon and the oral agreement arrived at, was informed to him by PW1, the person representing the 1st plaintiff company. The Trial Court, in fact, relied more on the evasive answers of the 9th defendant and 2nd defendant, who were examined as DW1 and DW2 respectively. However recalcitrant, the conduct of DW1 and DW2 were in the box, that cannot lead to an inference of a concluded contract entered into by the parties, since the proof of the same has to be furnished by the plaintiff and established unequivocally. Merely because the testimony of the defence witnesses were inconsistent or were evasive, would not, as a corollary, lead to a finding in favour of the plaintiff. The defendants, from the very inception, opposed the contract having been entered into and in the box, the defence witnesses feigned ignorance, of the various aspects put to them in cross-examination. We have already found that the plaintiff’s evidence could not prove unequivocally that the claim was established.

Paragraph 39We are of the opinion that the plaintiff has failed to establish a concluded contract and the Trial Court, and the First Appellate Court have egregiously erred in granting specific relief, which findings borders on perversity. We are not convinced that the meetings occurred, as pleaded by the plaintiff, and in that circumstance, we are unable to find even the token advance of Rs.5,11,000/- having been paid to the defendants and, hence, there is no question of refund of any advance amounts, especially, since the cheque alleged to have been handed over of Rs.5,00,00,000/-, is not presented to the bank on which it is drawn. We are not dealing with the authority of the 9th respondent to deal with the assets of the Company since it is no longer necessary, the suit having been found to be not maintainable and the contract having failed to be established as a concluded contract. The concurrent findings of the Trial Court and the High Court, according to us are perverse. The plaintiff could not establish a concluded contact and emphasis in the impugned judgments, were more on the dishonest and evasive stance of the defendants who mounted the box, which cannot lead to any adverse inference against them. The defendants have stoutly denied the claim of the successive meetings and that of a concluded contract for sale of the land and the plaintiff miserably failed to prove any one of the points urged by them.

Acts & Sections

Order II Rule 2 Code of Civil Procedure, 1908Order XXIII Rule 1(3) Code of Civil Procedure, 1908

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Also decided in this judgment

Does Order II Rule 2 CPC bar a fresh suit for specific performance where no leave was taken when the first suit for injunction was instituted?Does a suit for specific performance based on an oral agreement require strict proof of a concluded contract, not mere inference?Can proof be offered without pleadings where an oral contract is attempted to be established?

Plain-language answer prepared by the LexStreak Editorial Desk — verify against the judgment. Source: Supreme Court of India. Corrections