Supreme Court: Specific Performance Suit Can't Be Decreed Based On Power Of Attorney Holder's Deposition About Plaintiff's Readiness & Willingness

 Having noticed the three judgments of this Court in Janki Vashdeo Bhojwani (supra), Man Kaur (supra) & A.C. Narayanan (supra), we are of the view that in view of Section 12 of the Specific Relief Act, 1963, in a suit for specific performance wherein the Plaintiff is required to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract, a Power of Attorney Holder is not entitled to depose in place and instead of the Plaintiff (principal). In other words, if the Power of Attorney Holder has rendered some 'acts' in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the act done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have personal knowledge and in respect of which the principal is entitled to be cross-examined. If a Plaintiff, in a suit for specific performance is required to prove that he was always ready and willing to perform his part of the contract, it is necessary for him to step into the witness box and depose the said fact and subject himself to cross-examination on that issue. A Plaintiff cannot examine in his place, his attorney holder who did not have personal knowledge either of the transaction or of his readiness and willingness. The term 'readiness and willingness' refers to the state of mind and conduct of the purchaser, as also his capacity and preparedness, one without the other being not sufficient. Therefore, a third party having no personal knowledge about the transaction cannot give evidence about the readiness and willingness. {Para 12}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7840 of 2023

Decided On: 17.05.2024

Rajesh Kumar Vs. Anand Kumar and Ors.

Hon'ble Judges/Coram:

Pankaj Mithal and Prashant Kumar Mishra, JJ.

Author: Prashant Kumar Mishra, J.

Citation: 2024 INSC 444,MANU/SC/0459/2024.

Read full Judgment here: Click here.

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Under which circumstances the alleged wrong translation of deposition becomes binding on the party?

 The applicant's mother had specifically admitted that jewellery was gifted to respondent no.1 during her wedding. The other witnesses were examined on behalf of applicant to salvage this situation by deposing that the translation was not correct from Kutchi to English and in fact what the mother meant to say is that jewellery was loaned to respondent no.1. Admittedly, after the evidence was led no application has been made to correct the translation of the deposition of mother of applicant from Kutchi to English and the evidence now forms part of judicial record which has been transcribed as having identified the jewellery in the photographs as well as identifies the same as gifted to respondent no.1.

IN THE HIGH COURT OF BOMBAY

Crim. Revision Application No. 234 of 2023

Decided On: 22.03.2024

Kaushal  Vs. Jyoti 

Hon'ble Judges/Coram:

Sharmila U. Deshmukh, J.

Citation:  MANU/MH/1955/2024.

Read full Judgment here:  Click here.

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Under which circumstances the court can grant compensation to wife in domestic violence Act proceeding in absence of specific prayer for its grant?

The submission of Mr. Deshmukh is that in absence of any prayer under section 18 of the DV Act, the award of compensation is unjustified. I have already discussed the said aspect hereinbefore. It is not necessary that the relief in respect of each and every clause of section 18 clauses (a) to (f) of the DV Act should be sought. As far as the quantum of compensation is concerned the provisions of DV Act do not lay down any strait jacket formula for computing the same and the same has to be ascertained by taking into consideration the entire facts and circumstances of case. {Para 80}

 IN THE HIGH COURT OF BOMBAY

Crim. Revision Application No. 234 of 2023

Decided On: 22.03.2024

Kaushal  Vs. Jyoti 

Hon'ble Judges/Coram:

Sharmila U. Deshmukh, J.

Citation:  MANU/MH/1955/2024.

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Whether court should draw adverse inference if party fails to depose before court?

 The original defendant no.1 did not appear in person to depose, and be crossexamined in the suit. His younger brother deposed on the basis of a power of attorney, acknowledging that the latter hadseparated from his elder brother. No explanation was furnished

why the original defendant did not appear in person to depose.

We find no reason not to draw an adverse inference against

defendant no.1 in the circumstances. In Iswar Bhai C. Patel vs.

Harihar Behera, (1999) 3 SCC 457 this Court observed as

follows:

“17…..Having not entered into the witnessbox

and

having not presented himself for crossexamination,

an adverse presumption has to be drawn against him

on the basis of the principles contained in Illustration

(g) of Section 114 of the Evidence Act, 1872.”

NONREPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1725 OF 2010

IQBAL BASITH AND OTHERS Vs N. SUBBALAKSHMI 

Author: NAVIN SINHA, J.

Dated: DECEMBER 14, 2020.

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Whether claimant in a motor accident case can prove his case by producing certified copy of deposition of witness recorded in a criminal case?

In all these authorities this Court as well as the Hon'ble Apex Court reiterated the basic principle that is required to be established in motor accident claim petition, that the burden is on the claimant to prove the accident including the involvement of the vehicle/s, as the case may be. Here, in this case, in order to prove the said involvement of the vehicle owned by respondent No. 1 and insured with respondent No. 2 the claimants have relied on police papers only. Important point to be noted is that the First Information Report is admittedly lodged by an eye witness i.e. Niraj Kothari, who was the rider of motorcycle, on which, deceased was the pillion rider. Claimants have not given any reason, as to why Niraj Kothari has been kept out of the witness box before the Tribunal. At this stage itself, it can also be considered that now the appellants intend to produce the certified copy of deposition of Niraj taken in criminal case. In fact, when in this case, he has not been examined, his deposition in criminal case cannot be read in evidence. From the said document it appears that he was examined before the criminal Court on 27.03.2018, whereas this petition was decided by the Tribunal on 31.03.2018. Even if, we take this fact liberally and allow the deposition of Niraj to be read in evidence in this case, yet in the examination-in-chief itself, he has merely stated that his vehicle was dashed by a bullet motorcycle, but then he has further stated, that he cannot give number of the bullet vehicle and he will not be about to identify the bullet rider. Surprisingly, though his First Information Report appears to have been exhibited before the Criminal Court, yet the prosecution has not resorted to the proceeding as contemplated under Section 145 of the Indian Evidence Act, when it can be said that witness was not supporting the prosecution. Therefore, even after allowing such document to be produced on record, yet it cannot be stated that the involvement of the vehicle could be proved by the claimants.

14. As regards those applications, wherein the claimants intending to produce certified copies on record, it can be again said that no reason has been assigned by the claimants, as to why they could not produce these documents, when the matter was before the Tribunal. If they want to invoke the provisions of Order 41 Rule 27 of CPC, the first and the foremost ingredient that is required to be considered is, that they were not having custody of that document or they could not procure it even after due diligence, when the matter was before the Tribunal. The reason, that has been tried to be stated that there was inadvertent omission on the part of their Advocate in not placing those documents on record. They have not come with a case that during the pendency of the claim petition they had given those documents in the custody of their Advocate but Advocate did not produce those documents on record. If the procurement of the documents is itself after the decision in the matter, then the reasons given by them cannot be said to be sufficient. Merely because they are the certified copies in another litigation they cannot be allowed to produce those documents on record, in order to fill up the lacuna in leading evidence by them before the Tribunal.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

First Appeal No. 396 of 2019, 

Decided On: 25.09.2019

 Kalpana Rajendra Kothari  Vs. Santosh Arvind Jangam and Ors.

Hon'ble Judges/Coram:

Vibha Kankanwadi, J.

Citation: MANU/MH/2713/2019,2020(2) MHLJ 561

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How to appreciate evidence if there is variation in the narration of incident by two witnesses or between two statements of the same witness?

 In the cross-examination, this witness has stated that he

stated before the police that Ananda was in a sitting position and

accused Nos. 2 and 3 had caught him but it is not there in the

statement. Learned counsel Shri Ghanekar argued that it shows that

this evidence is in the nature of improvement and, therefore, cannot be considered. The analysis of the statement under Section 161 of Cr.P.C. of this witness reveals that this witness has stated that in the auto rickshaw accused Nos. 2 and 3 and two more persons were sitting and the deceased Ananda was sleeping in the auto rickshaw in injured condition. This clearly shows that this witness has stated about the presence of accused Nos. 2 and 3 and two more persons and about presence of the deceased in the injured condition in the auto rickshaw.

It is true that whatever PW 3 has stated in the evidence does not appear in verbatim in the statement before the police. Mere variation between the statement under Section 161 of Cr.P.C. and deposition before the Court in narration of the incident would not amount to contradiction.

It has been held in the case of Rammi alias Rameshwar vs. State of

Madhya Pradesh reported in 1999 Cri.L.J. 4561 thus :-

24. When eye-witness is examined at length it is

quite possible for him to make some discrepancies.

No true witness can possibly escape from making

some discrepant details. Perhaps an untrue

witness who is well tutored can successfully make

his testimony totally non-discrepant. But Courts

should bear in mind that it is only when

discrepancies in the evidence of a witness are so

incompatible with the credibility of his version that

the Court is justified in jettisoning his evidence.

But too serious a view to be adopted on mere

variations falling in the narration of an incident

(either as between the evidence of two witnesses

or as between two statements of the same witness)

is an unrealistic approach for judicial scrutiny.  {Para 41}

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPEAL NO. 268 OF 2014

 Shyamsundar Vithal Pawle Vs The State of Maharashtra 

CORAM : S. V. Gangapurwala &

M.G. Sewlikar, JJ.

PRONOUNCED ON : 11th September, 2020.

JUDGMENT : ( PER M. G. SEWLIKAR, J.)

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Whether a witness should depose, that knife was of a particular size for treating it as a deadly weapon?

In order to bring home the charge U/s. 397 IPC, the prosecution must prove by convincing evidence that the knife used by the accused was a deadly weapon. In Salim Vs. State (Delhi Administration), MANU/DE/0339/1987 : 1988 (14) DRJ 85 this Court held as under:

"9.We all understand what a knife means and to categorise it or to fix its size for it to be a deadly weapon may not be appropriate. A knife has also been' described as a pocket knife, pen knife, table knife, kitchen knife, etc. It cannot be denied that a knife can be used as a weapon of offence. It can cut, it can pierce, it can be deadly. To say that a knife to be a deadly weapon should be of a particular size would perhaps be not a correct statement. In the present case, the evidence shows that the injury was caused to Singh Ram witness by a sharp-edged weapon and there is a statement that the accused Salim was carrying a knife and it was with that knife that the injury was caused to the witness. It would not be necessary for the witness to further state as to that was the size of the knife to attract the provisions of Section 397 Indian Penal Code as was contended by Mrs. Ahlawat. This contention that case under Section 397 Indian Penal Code is not made out fails."

IN THE HIGH COURT OF DELHI

Crl. A. 580/2019 and Crl. M.B. 795/2019

Decided On: 27.05.2020

 Pawan  Vs. State

Hon'ble Judges/Coram:

Rajnish Bhatnagar, J.

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To what extent deposition of witness made in earlier proceeding can be marked?

In view of the above precedential guidance, it is clear that as it is the case of the revision petitioner/respondent in the instant OP that the witness (PW 1) made a statement in his present 

deposition contrary to certain admissions, which he made in the deposition given by him in the former judicial proceeding, the contrary statements in his said previous deposition can be confronted to him in his cross-examination; and, on such confrontation, if he admits the confronted portions or statements in his previous deposition, such admissions can be recorded by the Trial Court in his present deposition; however, if, on such confrontation, he denies the previous statements in his previous/former deposition, which are contrary to his statements in his present deposition, then the confronted portions only of the previous deposition given in former judicial proceeding can be permitted to be marked, but, the entire deposition cannot be permitted to be marked in the instant case, in view of the facts and the legal position obtaining.

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

CRP No. 4853 of 2018

Decided On: 25.04.2019

 Telanakula Kasi Viswanadham  Vs.  Pokuri Maruthi Prasad

Hon'ble Judges/Coram:

M. Seetharama Murti, J.

Citation: AIR 2019 AP 79

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What conditions are to be satisfied before deposition recorded in previous suit can be relied in subsequent suit?

6. As per the well settled law on the subject the following conditions are necessary to be satisfied before the evidence recorded in a previous judicial proceedings can be received in another judicial proceedings:-

(1) The evidence must have been given in a judicial proceeding or before any person authorized by law to take evidence;

(2) That the first proceeding was between the same parties as in the second proceeding or between representatives in interest of the parties;

(3) That the party against whom the deposition is tendered had the full opportunity of cross examining the deponent when the deposition was recorded;

(4) That the issues involved in both the proceedings are the same or are substantially the same;

(5) That the witness is incapable of being called at the subsequent proceeding on account of death, or incapability of giving evidence, or being kept out of the way by the other side, or an unreasonable amount of delay or expense etc.,

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

C.R.P. No. 7339 of 2018

Decided On: 23.04.2019

Jakka Srinivasa Rao  Vs. Javvaji Venkata Chalapathi Rao and Ors.

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Whether it is necessary for court to see pleadings of both suits to ascertain whether deposition recorded in previous suit is admissible in subsequent suit?

 Just like in a case of the res judicata etc., where the pleadings in the earlier and later to be filed to enable the Court to come to a conclusion that the issue in both the matters are the same, in a case of this nature also that if the Court has to come to a conclusion that the issues involved in both the suits are same/substantially the same and that the parties are same etc. Hence, there is a necessity for the Court to consider the pleadings or other material etc., in both the suits to come to this conclusion. The Court should also be convinced that the party, against whom the deposition is tendered, has had a full opportunity of cross-examining the defendants. For this the entire deposition of the witness must be filed and considered. Lastly, the Court should be convinced that the witness was "incapable" of giving evidence in the subsequent proceedings. The incapacity should not be temporary or momentary as it is when caused by the temporary weakness, illness etc. The Court should be clearly convinced on all these grounds and the party who wishes to file the deposition in the earlier suit should plead and prove these essential elements.

CONCLUSION:

10. In the case on hand the Trial Court did not have any material whatsoever to conclude (a) that the issues involved in both the proceedings are same or substantially the same; (b) that all the parties in the earlier suit had an opportunity of full and complete cross-examination of the witness whose deposition is sought to be marked; (c) that the witness was incapable of giving evidence because of his sickness or for some other similar reasons. As mentioned by this Court earlier, these are all the matters which have to be carefully assessed by the Court and proved by the petitioners. In fact, the affidavit filed in this case in support of the application to receive the deposition states that the witness in intentionally avoiding to give evidence (emphasis supplied), which clearly suggests that witness is conscious of what he is doing and is deliberately avoiding to give replies. In addition to this the counter filed also asserts that due to old age weakness and paralysis the witness was not giving evidence and the counter reiterates that he is not disabled.

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

C.R.P. No. 7339 of 2018

Decided On: 23.04.2019

Jakka Srinivasa Rao  Vs. Javvaji Venkata Chalapathi Rao and Ors.

Hon'ble Judges/Coram:

D.V.S.S. Somayajulu, J.

Citation: AIR 2019 AP 18

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Whether any person can give evidence even though power of attorney is not executed in favour?

In his cross-examination it is elicited that the witness has no power of attorney or written authorisation to give evidence in the Court. The learned Counsel for the defendants contended at the time of arguments that P. W. 1 has no right to give evidence on behalf of the bank without power of attorney or written authorisation. In my view, this arguments, has no merit. Anybody can come and give evidence in Court provided that he is acquainted with the facts of that case. No power of attorney or authorisation is necessary for any witness to give evidence in Court. It may be for filing the plaint, or signing the plaint or signing a written statement an authority may be necessary, but to give evidence on oath, anybody, who is acquainted with the facts can give evidence.

IN THE HIGH COURT OF BOMBAY

Suit No. 1710 of 1979

Decided On: 20.12.1996

Central Bank of India Vs. Tarseema Compress Wood Manufacturing Company and Ors.

Hon'ble Judges/Coram:

R.G. Vaidyanatha, J.

Citation: AIR 1997 Bombay 225.

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Whether part of affidavit of examination in chief which is not in consonance with pleading can be ignored by court?

 In my view, Mr. Shah learned counsel appearing for the applicant has rightly pointed out that part of the deposition of Dr Navroze Kotwal is irrelevant to the issues and beyond the scope of pleadings as the said witness has sought to lead evidence on the matrimonial dispute between the applicant the said witness which allegations are neither relevant for the purpose of deciding any issues in testamentary matter, nor is in consonance with the pleadings filed by the defendants. It is not in dispute that defendants have already led evidence of three witnesses on various issues framed. The witness now proposed to be examined to prove that the Will was not executed by the said deceased is contrary to the affidavit filed by the deponent himself in which he has not only admitted execution of the Will but has reserved his right to act as executor in future. The deponent of the said affidavit has never applied for withdrawal of the said affidavit filed in this Court.

54. In my view, the objections thus raised by the plaintiff in respect of part of the evidence highlighted in affidavit in support of chamber summons has merits and thus such part of affidavit deserves to be ignored while recording of evidence of witness Dr Navroze Kotwal with a clarification that plaintiff need not cross examine the said witness in respect of such part of deposition referred in the schedule to the chamber summons.

IN THE HIGH COURT OF BOMBAY

Chamber Summons (L) No. 67 of 2014 in Testamentary Suit No. 26 of 1999 in Testamentary Petition No. 504 of 1998

Decided On: 10.06.2014

 Mahabanoo Navroz Kotwal Vs.  Piloo Fali Bomanji

Hon'ble Judges/Coram:

R.D. Dhanuka, J.

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Whether daughter can depose on behalf of her mother even though power of attorney was not given in her name?

 No doubt there is also a principle of law as laid down in Vidhyadhar Vs. Manikrao and others that if a party to a suit does not appear in the suit and state his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him was not correct.

35. But the said principle laid down in Vidhyadhar (supra) MANU/SC/0172/1999 : (1999) 3 S.C.C. 573 has no application in the case of exceptions mentioned in the Janki Vashdeo Bhojwani and others (supra) MANU/SC/1030/2004 : (2005) 2 S.C.C. 217.

36. It may be in the instant case, the 3 petitioner/D-2 has not given a power of attorney to the 1st petitioner/D-4. But being the biological daughter of the 3 petitioner/D-2, she would naturally be aware of the details of acquisition of title of her mother/D-2, when the same is more importantly reflected in registered documents/Court orders.

37. In my view, where title to property is in issue, and is based on registered documents and Civil Court decrees as in the instant case, there is nothing wrong, if on behalf of an aged and infirm parent like the 3rd petitioner/D-2, her biological daughter, the 1st petitioner/D-4, gives evidence.

38. It is not as if proof of title is akin to a state of mind or a conduct which is only in the personal knowledge of the title holder and cannot therefore be spoken to by others knowing of it. So it cannot be said that unless such title holder deposes, the factum of title does not get proved.

39. Further, in law, the non-examination of the title holder cannot confer title on the person disputing his/her title by way of acquiescence, estoppel or silence.

40. As held in Kamakshi Builders Vs. Ambedkar Educational Society and others MANU/SC/2681/2007 : (2007) 12 S.C.C. 27, where title to property is in issue, the finding as to who has got title is an inference of law, arising out of certain set of facts. The Supreme Court held that if in law, a person does not acquire title, the same cannot be vested only by reason of acquiescence or estoppel on the part of the other. It held that the title cannot be vested because a witness or a party is not examined.

41. This principle applies on all fours to the instant case.

42. It cannot also be disputed that there is no mandatory rule that all defendants ought to depose in a suit. In Saradamani Kandappan and others Vs. S. Rajalakshmi and others MANU/SC/0717/2011 : (2011) 12 S.C.C. 18, the Supreme Court held that where the entire transaction was done on behalf of defendant Nos. 1, 2 and 3 for the other defendants, it was unnecessary for the other defendants to be examined as witnesses and duplicate the evidence.

43. In this view of the matter, I am of the view that the Court below acted perversely in not permitting the 1st petitioner to depose on behalf of 3rd petitioner/D-2 after having accepted the illness of the 3rd petitioner/D-2. It could not have held that D-2 should depose or else adverse inference can be drawn for the benefit of the 1st respondent/plaintiff. It would be a travesty of justice to take such a view in the facts and circumstances of the case.

IN THE HIGH COURT OF JUDICATURE AT HYDERABAD 

C.R.P. No. 1698 of 2018

Decided On: 29.08.2018

V. Kavitha Reddy  Vs.  V. Aditya Reddy and Ors.

Hon'ble Judges/Coram:

M.S. Ramachandra Rao, J.

Citation: AIR 2018 Hyderabad 173

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Whether it is permissible to rely deposition recorded in criminal case in civil case?

The Division Bench of Calcutta High Court in the matter
of The Gaya Muzaffurpur Roadways Co. and others vs. Fort
Gloster Industries Ltd. And another reported in AIR 1971
Calcutta 494 (V 58 C 112) in its para 19 and 21, while taking into
consideration, the impact of Section 125 of the Indian Evidence Act
has held that the deposition of the findings recorded by the Criminal
Court cannot be used as a substantive evidence i.e. as an admission 
in a Civil Court. Para 19 and 21 is reproduced herein below for
convenience:-
“19. Mr. Banerjee next contended that in any event, the liability
of the carrier was limited by the consignment notes which
constituted the basis of the agreement for transport. Before we
proceed to examine the contention, it is necessary to consider
whether the consignment notes for the suit goods were at all
issued to or accepted by the company. We have seen that the
entire goods of the company were carried by fourteen lorries, and
for each consignment in one lorry, one set of such notes was
issued. Out of the same twelve consignment notes containing
endorsement of due receipt by the consignee have been exhibited
in this case, being exhibits A to A-11 and conditions of carriage
are printed overleaf. As to the suit goods carried by the two
lorries, no consignment note was produced. It is an admitted
position that the relevant consignment notes were not signed by
the company. The learned Judge came to the finding that no
consignment notes were issued to the company, firstly because
they were not filed in this suit, though stated to have been filed in
the criminal proceedings. D. W. 1 stated that the consignment
notes were prepared in five copies, three were sent with the driver
of the lorry concerned, one was retained in their office and one
was sent to the company. The P. W. 2 who had no personal
knowledge stated in her evidence that there was a note in her
office to the effect that no consignment note was issued to the
company but the office note was not produced and this was rightly
commented by Mr. Banerjee. The learned Judge also relied on the
deposition of D. W. 1 in the criminal court (Ext. 9) where he
stated that the original consignment note with three copies,
meaning four copies were handed to the driver. Mr. Banerjee took
serious objection as to the admissibility of such deposition in
criminal court. His contention is that there was no compliance of
the requirement under Section 145 of the Evidence Act in that the
witness was not confronted with any particular statement which
again could only be admitted to shake the credibility of the
witness and could not be used by way of substantive evidence as
an admission. Mr. Banerjee relied on the decision in Bal
Gangadhar Tilak v. Shrinivas Pandit, 19 Cal 729 (742) = (AIR
1915 PC 7 (11) ) in which it was held that in absence of proof of
circumstances specified in Section 33 of the Evidence Act, the
introduction and use in bulk in a civil suit of depositions of
witnesses recorded in a criminal trial for contradicting or
discounting the witnesses of the suit without placing the
particular matter or point for explanation in view of the
discrepancy, "were illegitimate". Reliance was also placed on the
decision in Bhagawan Singh v. State of Punjab, AIR 1952 SC 214
(218) and it was observed in that case that the witness should be
afforded a reasonable opportunity of explaining contradictions
after his attention is drawn to them in a fair and reasonable
manner.
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Appeal from Order No. 103 of 2017
Smt. Akshi Yadav 
V
Pradeep Yadav 


Coram:- Hon’ble Rajiv Sharma, J.

Decided on : 22.06.2017

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Whether power of attorney holder can depose on behalf of landlord?

As to Question No.(ii) :  The landlady had examined
her power of attorney holder in support of her prayer for eviction.
The said power of attorney holder was her brother­in­law.  In his
affidavit, he had specifically stated that he had been collecting the
rent from the tenants and managing the affairs of the landlady.
He was aware of all the facts of the case. He further stated that on
4­7­2009, he had issued a letter to the defendant nos.1 and 2
demanding arrears of rent. This letter was not replied.   He has
then stated that the landlady through her Counsel had issued a
registered notice dated 21­11­2009.  He identified the signature of

the said Counsel and stated that the contents of the notice were
true.  The submission made on behalf of the petitioners that the
power of attorney holder was not competent to depose on behalf
of the landlady cannot be accepted.  As noted above, the power of
attorney holder was the brother­in­law of the landlady.   He had
been collecting rent from the tenants and had also issued a letter
on her behalf demanding arrears of rent.  He was aware about the
legal notice issued demanding arrears of rent. In Man Kaur (supra)
which decision was relied upon by the learned Counsel for the
petitioners the position as to who could give evidence on behalf of
another person  in matters involving personal knowledge has been
summarized.  In the present case, it cannot be said that the power
of   attorney   holder   had   deposed   about   the   acts   done   by   the
principal – landlady. In fact, various steps were taken by the power
of   attorney   holder   himself   and   therefore,   he   was   very   much
competent to depose as her power of attorney holder.  Thus, in the
facts of the present case and considering the relationship between
the power of attorney holder and the landlady, it is held that the
power of attorney holder was competent to depose on behalf of

the landlady.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.6936 OF 2015

Shri  Sagar   Bhagwat,  ­V Smt.   Kiran   Wife   of   Ishkumar  Leekha,  

CORAM: A.S. CHANDURKAR, J.

DATED: 28­-07-­2016.

Citation: 2016(6) MHLJ368,(2016)5 ALLMR 826

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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 or
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 


THE HONBLE SRI JUSTICE CHALLA KODANDA RAM            

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

Citation;AIR 2016(NOC)250 HYD

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Whether marathi deposition will prevail over English memorandum?

Where a witness deposed in Marathi which is the language of the Courts in mofussil and that evidence is read over to the witness and was admitted by him to be correct and the memorandum of evidence was made the Judge in English, in such a case, when a question arises as to what exactly the witness had stated in his evidence, it is the Marathi deposition of the witness that has to be taken into account and not the memorandum in English prepared by the Judge. Again in a case of State of Maharashtra v. Vilas Dashrath, 1976 UCR (Bom) 195, it is observed that :

"When a question arises as to what exactly the witness had stated in his evidence, it is the Marathi deposition of the witness which had to be taken into account".1

Bombay High Court

The State Of Maharashtra vs Bhaurao S/O Doma Udan And Others on 28 July, 1995

Equivalent citations: (1995) 97 BOMLR 414, 1996 CriLJ 673, 1996 (1) MhLj 214

Bench: B Wahane, R Lodha

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How change of religion can be made to known to public?

This Court finds itself in respectful agreement with the above pronouncement. Being of a religious persuasion or belief in a particular religion and continuance thereof is an existential choice. Manifestations of religious practices of a particular religion could lead to the inference of the person's adherence to that religion. However, faith itself cannot be seen unless the person chooses to make it obviouse. A clear and direct way of making known one's religion would be by way of a public statement or deposition through an affidavit in a Court. In the instant case the respondent made such public declaration - that she had re-embraced Hinduism and produced a certificate from the organisation which facilitated it. She reiterated this factum in the Plaint and then deposed so in an affidavit in the Petition. No further proof could be required, nor indeed could be led in evidence, to prove or disprove her apostasy. It is inconceivable how any trial could even be conducted in this regard. The best that the appellant would be able to achieve would be that upon the respondent deposing as to her apostasy in the witness box, the appellant would suggest vehemently to the respondent that she had not apostatized and the respondent would deny 

the same with vehemence. Faith cannot be determined simply by the vehemence of the suggestion or its denial in a trial in Court.

Delhi High Court

Munavvar-Ul-Islam vs Rishu Arora @ Rukhsar on 9 May, 2014

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI

Citation; 2015(2) ALLMR(JOURNAL)72

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Guidelines to Magistrate regarding reference of name of accused in proceeding

 Chapter VI, Para 23 of the Criminal
Manual reads as under:
"23. It is desirable in judicial
proceedings to prevent, as much as
possible, doubt as to the identity of the
person referred to therein. It frequently
happens that the same individual is known
by more names than one. Thus sometimes only
the surname, sometimes only the name of the
caste, or occupation or the village of the
individual is mentioned or he is spoken of

by a nickname, such as Bapu Saheb, Nana
Saheb or Bahau Saheb. Such variations in
description require explanation to render
them intelligible to an appellate Court. A
court of first instance should, therefore,
take care not only to ascertain, but to
make clear by evidence duly recorded, the
identity of any individual who is so
referred to under varying appellations and
if such an individual is an accused person,
his name and serial number according to the
chargesheet
should be cited in any passage
in which he is otherwise designated."
It is clear that High Court has laid down
guidelines requiring reference to be made to
accused person by name as well as serial Number
according to the chargesheet,
in the proceedings.
Had the above guidelines been strictly followed,
the obvious discomfort to the Court could have
been avoided. In the Marathi version of the
evidence, it is clearly recorded that the error
was on the part of the Court. No specific
guidelines are required for trial Courts to
understand that judicial records need to be clear
and specific. Still, the High Court has in clear
terms prescribed guidance in this regard, as
mentioned above. It is expected that the trial
Courts should strictly follow the Manual.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.86 OF 2000
 Suryakant s/o Chandrakant Gade @ Surya,
V
The State of Maharashtra,


CORAM: A.I.S. CHEEMA, J.

DATE OF PRONOUNCING JUDGMENT : 28TH AUGUST, 2014.
Citation; 2015ALLMR(cri)602

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Guidelines of Kerala HC regarding preparation of readable copy of deposition

 As regards the procedure for taking out

readable copy of the deposition of the presiding officer, this

court has issued circular regarding the same, as circular

No.27/70 (D1-25751/70 dated 06.08.1970, which reads as

follows:

               Recording of depositions and statements of accused
               persons- Preparation of legible copy of illegible
               deposition-Instructions issued.

               It is noticed that the depositions of witnesses and
       the statements of accused persons recorded by some of
       the presiding officers are illegible.     There have been
       instances where different versions of the depositions are
       to be found in the certified copies and in the copies
       forwarded to the High Court for the purpose of Referred
       Trials. The High Court would impress upon the presiding
       officers that it is essential to have a clear and legible
       record of the depositions of witnesses and the statements
       of accused persons.
               2. If the handwriting of any presiding officer is not
      easily readable he will arrange for the preparation of
      clear legible copies of depositions and statements as soon
      as practicable after they are recorded. The presiding
      officer will carefully scrutinise the copies and certify



    their correctness.   But, although these copies may be
      referred to, if necessary, certified copies must, of course,
      be prepared only from the original".

                So it is clear from the above circular No.

that, the office of the court is expected to take down the

readable copy of the deposition recorded by the presiding

officer, as soon as possible, immediately after the deposition

is recorded, so as to avoid the difficulty of taking out the

readable copy of the deposition of the presiding officer

whose handwriting is not readable or illegible on a later

occasion. 
 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                            PRESENT:

                       MR. JUSTICE K.RAMAKRISHNAN

                          OP(Crl.).No. 39 of 2014 (Q)
                                   
A.K. MUHAMMED KUNHI, Vs  MUHAMMED HAJI,
         


               Dated this the 18th day of August, 2014


                           

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