Case Note & Summary
The Supreme Court considered an appeal by special leave against an order of the Division Bench of the Kerala High Court in CRP No. 547 of 1994 arising from a dispute over the admissibility of a previous deposition under Section 33 of the Indian Evidence Act, 1872. The litigation originated from a claim for letters of administration in respect of the estate of deceased V.S. Annama, who allegedly executed a will bequeathing her properties to respondent Nos.1 and 2. The appellant, one of her brothers, objected to the grant. In the first proceeding, L.A.O.P. No.143 of 1980, one Kurian was examined as P.W.1. The trial court dismissed the application on merits and for non-joinder of necessary parties. On appeal, the High Court vacated the findings on genuineness of the will but upheld dismissal for non-joinder. Subsequently, respondents filed L.A.O.P. No.149 of 1988, which on caveat was converted into O.S. No.2 of 1990. In this second proceeding, the appellant sought to rely on the deposition of Kurian under Section 33, as Kurian had died. Respondents objected, and the trial court upheld the objection, which the High Court affirmed in revision. The Supreme Court framed the sole question as the interpretation of the second proviso to Section 33, particularly the meaning of 'adverse party in the first proceeding'. The appellant contended that the adverse party is the party against whom the evidence was given and who had the right and opportunity to cross-examine, even if that party did not produce the witness. The respondents argued that the party against whom the evidence is sought to be used must also have had the right and opportunity to cross-examine in the previous proceeding, and since they produced Kurian, they had no such opportunity. The Court examined the section and its proviso. It held that the main part of Section 33 was satisfied because Kurian died pending the proceeding. The second proviso, as an exception, protects the rights of the adverse party in the first proceeding, who had the right and opportunity to cross-examine. The term 'adverse party' means the party against whom the evidence was given, not the party who produced the witness. The Court reasoned that if the interpretation advanced by the respondents were accepted, the party producing the witness would gain an unfair advantage in subsequent proceedings while the adverse party would be deprived of using favorable evidence. The Court cited the decision in Poonamchand v. Motilal and Others and distinguished Dal Bahadur Singh's case as dealing only with the first proviso and the main part, not the second proviso. It held that the appellant, being the adverse party in the first proceeding, had the right and opportunity to cross-examine Kurian, and therefore the evidence was admissible. The Court did not consider the effect or acceptability of the evidence, leaving that to the trial court. The appeal was allowed, the High Court's judgment was reversed, the trial judge's order was set aside, and the trial judge was directed to mark the evidence of Kurian as P.W.1 on behalf of the appellant and proceed in accordance with law. No costs were awarded.
Headnote
A) Evidence - Relevancy of Previous Deposition - Conditions Under Section 33 - Indian Evidence Act, 1872, Section 33 - The main part of Section 33 requires that the witness is dead, cannot be found, incapable of giving evidence, kept out of the way by the adverse party, or presence cannot be obtained without unreasonable delay or expense; in the present case, Kurian died pending the proceeding, satisfying the main part. The court held that the main section conditions were fulfilled. (Paras Not mentioned) B) Evidence - Interpretation of 'Adverse Party' in Second Proviso - Right and Opportunity to Cross-Examine - Indian Evidence Act, 1872, Section 33 proviso - The term 'adverse party' refers to the party against whom the evidence was given in the first proceeding, not the party who produced the witness. The proviso protects the adverse party's right and opportunity to cross-examine, and a party who examined the witness cannot object to admissibility on the ground of lack of cross-examination by that party. The appellant was the adverse party in the first proceeding and had the right and opportunity to cross-examine Kurian; therefore, the evidence was admissible. Held that the High Court's interpretation was incorrect, and the previous deposition of the deceased witness is admissible under Section 33. (Paras Not mentioned)
Issue of Consideration
Interpretation of the second proviso to Section 33 of the Indian Evidence Act, 1872, specifically the meaning of 'adverse party in the first proceeding' and whether the deposition of a deceased witness is admissible when the party against whom it is sought to be used had the right and opportunity to cross-examine in the previous proceeding.
Final Decision
The appeal was allowed. The judgment of the Kerala High Court was reversed, and the order of the trial Judge was set aside. The trial Judge was directed to mark the evidence of Kurian examined in the previous proceeding as P.W.1 on behalf of the appellant and proceed with the matter in accordance with law. No costs were awarded.
Law Points
- Evidence given by a witness in a judicial proceeding is relevant in a subsequent proceeding when the witness is dead
- cannot be found
- incapable of giving evidence
- kept out of the way by adverse party
- or his presence cannot be obtained without unreasonable delay or expense
- the proviso to Section 33 protects the adverse party in the first proceeding who had the right and opportunity to cross-examine
- the term adverse party means the party against whom the evidence was given
- not the party who produced the witness
- a party who examined a witness cannot object to admissibility of that witness's deposition on the ground that they had no right and opportunity to cross-examine
- the test is whether the statement was tested by examination and cross-examination by both parties in the previous proceeding
