Sunday, 24 April 2016

When deposition of witness taken in one case can not be relied on in another case?

Relevancy of Section 33 of the Evidence
Act is required to be considered and the same reads as under:

33. Relevancy of certain evidence for proving, in
subsequent proceeding, the truth of facts therein
stated.  Evidence given by a witness in a judicial
proceeding, or before any person authorized by law to
take it, is relevant for the propose of proving, in a
subsequent judicial proceeding, or in a later stage of
the same judicial proceeding, the truth of the facts
which it states, when the witness is dead or cannot be
found, or is incapable of giving evidence, or is kept out
of the way by the adverse party, or if his presence
cannot be obtained without an amount of delay o
expense which, under the circumstances of the case, 
the Court considers unreasonable:
           Provided-
That the proceeding was between the same  
parties or their representatives in interest;
That the adverse party in the first proceeding
had the right and opportunity to cross-examine;
That the questions in issue were substantially
the same in the first as in the second
proceeding.



      In the present revisions, none of the conditions, which have
been enumerated under Section 33 of the Act, are either pleaded or
proved.  In other words, the conditions, which entitle invocation of
Section 33 of the Act to bring on record the evidence given in other
proceedings, are not present.  This Court in Talasila Suresh
(1 supra) and Katru John Kennedy (2 supra) held that existence
of the circumstances mentioned under Section 33 of the Act is
mandatory.  It is also held in Guduru Nirmala (3 supra) that the
aspect of delay and importance of adhering to the procedure
prescribed has been emphasized.  

      In the present set of facts and on account of confusion that
the mandatory conditions prescribed under Section 33 of the Act
being absent, the depositions in C.C.No.387 of 2008 cannot be
brought on record.  
ANDHRA PRADESH HIGH COURT
CIVIL REVISION PETITION Nos.1135 OF 2015 and batch     

Dated;21-09-2015 

Vempati Venkateswar Rao.
Vs

Challa Vijaya and another 


  CITATIONS: 
1. 2013 (4) ALT 192
2. 2014 (5) ALT 186
3. 2014 (3) L.S. 177
4. 2002 (3) ALT 510
6. AIR 1997 SC 409 


THE HONBLE SRI JUSTICE CHALLA KODANDA RAM            

CIVIL REVISION PETITION Nos.1135, 1316 AND 1521 OF 2015       

Citation;AIR 2016(NOC)250HYD

        The common order dated 02.02.2015 passed in I.A.Nos.252,  
253 and 254 of 2014 in O.S.No.410 of 2014 is under challenge.

      The said I.As., were filed by the petitioner seeking to reopen,
recall PW.1 and receive and admit the certified copies of deposition
of PW.1 and the judgment in C.C.No.387 of 2008 on the file of the
Judicial Magistrate of First Class, Kodada.  By common order
dated, 02.02.2014, the said I.As., were dismissed.

        The petitioner is the plaintiff and the suit is filed seeking
specific performance of agreement of sale, dated 25.01.2003.  The
petitioner was examined and cross examined as PW.1 on   
03.06.2011 and a memo was filed on 17.06.2011 reserving his
right to adduce rebuttal evidence.  On behalf of the defendants,
defendant No.2 was examined as DW.4, who deposed before the   
Court that he filed a complaint in Crime No.70 of 2007 at
Police Station Kodada Town and the same was registered as  
C.C.No.387 of 2008 on the file of the Judicial Magistrate of First
Class, Kodada.  The said C.C. pertains to the plaint schedule
property.  Copies of the complaint and charge sheet were marked
as exhibits on behalf of DW.4.  DW.4 gave his evidence in the said
C.C. on 27.02.2013, 28.03.2013 and 28.06.2013, on which date 
the evidence on his behalf was closed.  C.C.No.387 of 2008 was
ended in acquittal on 05.11.2013.  DW.4 was cross examined in 
O.S.128 of 2006 on 03.08.2012 and 14.09.2012.  The examination 
and cross examination of DW.4 was completed by 14.09.2012, by   
which date his evidence was not recorded in C.C.No.387 of 2008,
therefore, the plaintiff/petitioner could not bring on record the
deposition of DW.4 and the order of acquittal dated 05.11.2013.  In
the process of giving evidence, DW.4 made certain admissions in
C.C.No.387 of 2008 and the factum of dismissal of the C.C. itself is
relevant for the purpose of adjudication of the suit.  With those
averments, the petitioner filed I.As., as referred to above.

        Defendant No.1 did not file any counter.

        Defendant No.2 filed counter raising objection with regard to
the very maintainability of the I.As., on the ground of delay and
that the same cannot be brought on record on account of Section
33 of the Indian Evidence Act, 1872 (for short, the Act).

        Learned Senior Civil Judge, Huzurnagar, after considering
the facts on record, respective arguments and also by relying on
the judgments of this Court reported in Talasila Suresh v. Naarla
Srinivasa Chakravathi , Katru John Kennedy v. Subbavarapu
Lakshmi  and Guduru Nirmala v. Guduru Ashok Kumar .   
dismissed the I.As., on 02.02.2015.  He also recorded that the suit
is at the arguments stage and the defendants arguments were also
heard in part and even on the ground of delay, the I.As., were
liable to be dismissed.

        Sri V. Raghu, learned counsel for the petitioner, submits
that between May, 2013 and May, 2014, there was no Judicial 
Officer posted at Suryapet, where the original suit was stated to be
filed.  In May, 2014, the Sub Court was established at Huzurnagar
and the same was also not functional for six months due to
transfer of files and renumbering of the cases at Huzurnagar.  The
said suit was stated to be transferred from Suryapet to the
Sub Court at Huzurnagar and the 1st date of hearing was
19.11.2014 and immediately on 03.12.2014, the I.As., were filed.
Hence, he submits that the ground of delay on which the I.As.,
came to be dismissed is unsustainable in the facts of the present
cases.  He further submits that Section 33 of the Act has no
application to these revisions and further by placing reliance on
the judgment of this Court in Jerrypothu Shamul John Babu v.
Peddipoga Anandarao  and the judgment of the Supreme Court in  
Union of India v. Moksh Builders and Financiers Ltd. , submits
that the order passed by the learned Senior Civil Judge,
Huzurnagar, is liable to be set aside and the I.As., are to be
allowed.

        On the other hand, Sri K. Lakshmaiah, learned counsel
representing Sri V. Brahmaiah Chowdary, learned counsel for the
respondents, by bringing to the notice of this Court Section 33 of
the Act and by placing reliance on the judgments of this Court
referred to in the order passed by the learned Senior Civil Judge,
submits that the law declared by this Court in the above
judgments is unexceptional and the judgments of the Supreme 
Court as well as this Court are not applicable in the present set of
facts and, hence, prayed for dismissal of these Civil Revision
Petitions.

      The facts are not in dispute.  The delay, which is attributed
to the petitioners in filing the I.As., may not be justified,
particularly in considering the fact that for a long period there was
no Judicial Officer functioning and there was also confusion with
regard to the transfer of the cases from Suryapet Court to
Huzurnagar.  So far as the said aspect is concerned, in all fairness,
the order of the learned Senior Civil Judge, Huzurnagar, cannot be
said to be sustainable.  However, the relevancy of Section 33 of the
Act is required to be considered and the same reads as under:

33. Relevancy of certain evidence for proving, in
subsequent proceeding, the truth of facts therein
stated.  Evidence given by a witness in a judicial
proceeding, or before any person authorized by law to
take it, is relevant for the propose of proving, in a
subsequent judicial proceeding, or in a later stage of
the same judicial proceeding, the truth of the facts
which it states, when the witness is dead or cannot be
found, or is incapable of giving evidence, or is kept out
of the way by the adverse party, or if his presence
cannot be obtained without an amount of delay o
expense which, under the circumstances of the case, 
the Court considers unreasonable:
           Provided-
That the proceeding was between the same  
parties or their representatives in interest;
That the adverse party in the first proceeding
had the right and opportunity to cross-examine;
That the questions in issue were substantially
the same in the first as in the second
proceeding.



      In the present revisions, none of the conditions, which have
been enumerated under Section 33 of the Act, are either pleaded or
proved.  In other words, the conditions, which entitle invocation of
Section 33 of the Act to bring on record the evidence given in other
proceedings, are not present.  This Court in Talasila Suresh
(1 supra) and Katru John Kennedy (2 supra) held that existence
of the circumstances mentioned under Section 33 of the Act is
mandatory.  It is also held in Guduru Nirmala (3 supra) that the
aspect of delay and importance of adhering to the procedure
prescribed has been emphasized.  

      In the present set of facts and on account of confusion that
the mandatory conditions prescribed under Section 33 of the Act
being absent, the depositions in C.C.No.387 of 2008 cannot be
brought on record.  The two judgments, referred to by learned
counsel for the petitioner, are not relevant and they do not answer
the objection raised in the present cases on behalf of the
respondents. 

      The Supreme Court in Moksh Builders and Financiers Ltd
(5 supra) held that admissibility or otherwise of the depositions
made by one of the witnesses in the suit and in particular
admissions of co-defendant cannot be admitted in another case.
That was not a case where there was an attempt on the part of the
parties to bring on record the depositions or evidence or any other
suit or a case or proceeding.  In the said judgment, the Supreme
Court held as under:
      Another argument which has been advanced
against the admissibility of the aforesaid admissions of
defendant No.3 is that they could be evidence only in
terms of Section 33 of the Evidence Act.  That
argument is also quite untenable because Section 33
deals with statements of persons who cannot be called
as witnesses, and does not restrict or override the
provisions relating to admissions in the Evidence Act.
The High Court also committed a similar error of law
in its impugned judgment.  The aforesaid admissions
of defendant No.3 are therefore satisfactory evidence to
prove that he himself was the owner of the house and
his son defendant No.2 was merely a benamidar for
him.


      This judgment of the Supreme Court was the basis for the
judgment in Jerrypothu Shamul John Babu (4 supra).  In that
case, no objection was raised with respect to the conditions which
are required to be satisfied before the depositions in another
proceeding could be relied on and as such there was no occasion
for the Court to consider the relevancy or otherwise of the
depositions in other suit.  In that view of the matter, the said
judgment is clearly distinguishable and not applicable for the
present set of facts.  Therefore, there is no error or illegality in the
order passed by the learned Senior Civil Judge, Huzurnagar.

      In the result, the Civil Revision Petitions are liable to be
dismissed and the same are accordingly dismissed.  No order as to
costs.

      The Miscellaneous Petitions filed in these Civil Revision
Petitions shall also stand disposed of.

_____________________________     
CHALLA KODANDA RAM, J       
21.09.2015

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