Adverse Party

What is an Adverse Party?

An **adverse party** is the **opposing party** in a legal proceeding — the person, entity, or group of persons whose legal interests are directly opposed to those of another party in the same case. In a civil suit, if you are the plaintiff, the defendant is your adverse party. In a criminal case, the prosecution and the accused are adverse to each other. The concept is fundamental to the adversarial system of justice that India follows, where two opposing sides present their cases before an impartial judge.

In simple terms, the adverse party is the person you are fighting against in court. Every piece of evidence you present, every argument you make, and every witness you call is aimed at defeating the claim or defence of your adverse party.

Legal Definition and Framework

While the term "adverse party" does not have a single statutory definition in Indian law, it is used extensively across multiple statutes and judicial decisions. The concept is implicit in the structure of litigation itself.

Adverse Party Under the Code of Civil Procedure, 1908

The CPC uses the terminology of "plaintiff" and "defendant," "appellant" and "respondent," and "applicant" and "opposite party" — all of which embody the concept of adverse parties:

- **Order 5 (Summons):** The court issues summons to the defendant — the adverse party — to appear and answer the plaintiff's claim.

- **Order 8 (Written Statement):** The defendant files a written statement in response to the plaintiff's plaint, setting out their defence against the adverse party's claims.

- **Order 6 Rule 15A:** Provides for the verification of pleadings, and statements made by one party can be used against them by the adverse party.

- **Section 32 CPC:** Defines "defendant" to include every person served with the suit, reflecting the concept that anyone brought into the litigation on the opposite side is an adverse party.

- **Order 41 Rule 22 CPC:** In appeals, the respondent (adverse party) may support the decree on grounds decided against them without filing a cross-appeal.

Adverse Party Under the Evidence Act

The **Indian Evidence Act, 1872** (now the **Bharatiya Sakshya Adhiniyam, 2023**) contains several provisions that specifically reference the relationship between adverse parties:

- **Section 145 (BSA Section 148):** A witness may be cross-examined as to previous statements made in writing by the adverse party, with the object of contradicting the witness.

- **Section 154 (BSA Section 144):** The court may permit the party who called a witness to put questions to them which might be put in cross-examination by the **adverse party** — this is the concept of declaring a witness hostile.

- **Section 21 (BSA Section 19):** Admissions are relevant and can be proved against the person who made them or their representative, essentially allowing the adverse party to use a person's own words against them.

Adverse Party Under Criminal Law

In criminal proceedings under the **Code of Criminal Procedure, 1973 (CrPC)** and the **Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS):**

- The **prosecution** and the **accused** are adverse parties. The State, represented by the Public Prosecutor, seeks conviction, while the accused seeks acquittal.

- **Section 273 CrPC (Section 317 BNSS):** Evidence must be taken in the presence of the accused or their lawyer — this ensures the adverse party has the opportunity to hear and challenge the evidence.

- In **private complaint cases** under Section 200 CrPC, the complainant is the adverse party to the accused.

When Does This Term Matter?

Right to Notice and Hearing

The most fundamental right of an adverse party is the right to **notice** and an **opportunity to be heard**. No order can be passed against a person without giving them notice and a fair chance to respond. This principle, rooted in **natural justice** (audi alteram partem — hear the other side), is constitutionally protected under **Article 14 and Article 21** of the Constitution.

The Supreme Court in **Maneka Gandhi v. Union of India (1978) 1 SCC 248** expanded the concept of procedural fairness, holding that any procedure that affects a person's rights must be just, fair, and reasonable — which necessarily includes hearing from the adverse party.

Cross-Examination

One of the most important rights of an adverse party is the right to **cross-examine** witnesses called by the other side. Under **Section 137 of the Indian Evidence Act (Section 139 BSA)**, cross-examination is the examination of a witness by the adverse party. The Supreme Court in **State of Rajasthan v. Ani (1997) 6 SCC 162** held that the right of cross-examination is a fundamental right of the accused and denial of this right vitiates the trial.

Ex Parte Proceedings

When an adverse party fails to appear despite proper service of notice, the court may proceed **ex parte** — that is, in the absence of the adverse party. Under **Order 9 Rule 6 CPC**, if the defendant fails to appear on the date of hearing, the court may proceed ex parte. However, the absent adverse party has the right to apply for setting aside the ex parte decree under **Order 9 Rule 13 CPC** if they can show sufficient cause for their absence.

Service of Documents

All pleadings, applications, and documents filed in court must be **served on the adverse party**. Under **Order 5 CPC**, summons must be served on the defendant. Under **Order 19 Rule 2**, affidavits must be filed with copies served on the adverse party. Failure to serve documents on the adverse party can render proceedings voidable.

Practical Significance

- **Identify all adverse parties** at the outset — failure to join a necessary or proper party can result in the suit being dismissed or the decree being ineffective.

- **Proper service** on all adverse parties is essential. Courts are increasingly strict about proof of service, and defective service can delay proceedings by months or years.

- **Multiple adverse parties** may have conflicting interests among themselves — for example, in a partition suit, multiple defendants may claim different shares of the same property.

- **Costs** are typically awarded against the unsuccessful adverse party, making it financially significant to properly assess the strength of your case against the adverse party.

- **Settlement** often involves negotiating directly with the adverse party or their lawyer, making identification of the true decision-maker on the adverse side practically important.

Frequently Asked Questions

Can the same person be both a co-party and an adverse party?

Yes, this situation arises frequently in Indian litigation. For example, in a **partition suit**, Defendant No. 1 and Defendant No. 2 may both be defendants (co-parties), but they may have claims adverse to each other regarding their respective shares. In such cases, the court allows them to file written statements not only against the plaintiff but also against each other. Under **Order 8 Rule 6A CPC**, a defendant can file a counter-claim against the plaintiff or against a co-defendant if the claims are connected.

What happens if an adverse party dies during proceedings?

If an adverse party dies during pending proceedings, the matter is governed by **Order 22 CPC**. The legal representatives of the deceased must be brought on record within **90 days** of the death coming to the knowledge of the surviving party. If the right to sue survives, the case continues against the legal representatives of the deceased adverse party. If the right to sue does not survive (personal actions), the suit abates as against the deceased party.

Is the government an adverse party in public interest litigation?

In **public interest litigation (PIL)**, the concept of adverse party operates differently. The petitioner files the PIL in the public interest, and the government or public authority is the respondent. While the government is technically the adverse party, the relationship is not purely adversarial — the court, the petitioner, and the government are all theoretically working toward the same goal of upholding public rights. However, in practice, the government often contests PILs vigorously, and the adversarial nature of the proceedings remains.

Can an adverse party be added or removed during proceedings?

Yes. Under **Order 1 Rules 10 and 10A CPC**, the court may at any stage of the proceedings add or strike out any party. A person may be added as a defendant (adverse party) if their presence is necessary for the effectual adjudication of the dispute. Similarly, a party may be struck off if they are not a necessary or proper party. The court exercises this power to ensure that all persons whose rights may be affected by the decree are before the court.