Madras High Court
Kurshid Begum And Ors. vs Amni Jan And Ors. on 26 July, 2005
Author: R. Banumathi
Bench: R. Banumathi
JUDGMENT R. Banumathi, J.
1. This Revision is directed against the order of IV Assistant Judge, City Civil Court, Chennai, made in I.A. No. 5364 of 1996 in O.S. No. 1707 of 1988 dated 17-08-2000, Ordering eschewing of the evidence of P.W.1. The Plaintiffs are the Revision Petitioners.
2. The relevant facts for disposal of this Revision Petition could briefly be stated thus :-
a) O.S. No. 1707 of 1988:- The suit relates to 2/9th share of the house, bearing new Door No. 8 in Habibullah Sahib Street, Triplicane, Chennai. The First Plaintiff and the Defendants 1 to 4 are brothers and sisters respectively. The Defendants 5 to 10 are the legal heirs of the deceased First Defendant. The First Plaintiff has got 2/9th share in the suit immovable property. While, the First Plaintiff was living in the suit property with his wife, differences arose between him and his wife. To settle the dispute between the First Plaintiff and his wife, the First Defendant's Husband Nooruddin Sahib advised the First Plaintiff to transfer the property in favour of Defendants 1 to 4. To set right the behaviour of his wife, in good faith, the First Plaintiff has executed the document under the impression that he is executing the Settlement Deed in favour of the Defendants. Later, the Defendants have agreed to reconvey the property to the First Plaintiff. The Husband of the First Defendant, namely, Nooruddin Sahib, received a sum of Rs. 3,800/- on or about 15-02-1987, for the expenses of the Release Deed; but, he had postponed the execution of the Document. Hence, the First Plaintiff has issued a legal Notice to the First Defendant's Husband on 29.12.1987. Despite issuance of Notice, the Defendants 1 to 4 have not reconveyed the property by executing the Sale Deed. Hence, the Plaintiffs have filed the Suit for declaration that the Sale Deed dated 22-02-1985 is illegal, sham and nominal and for other reliefs.
b) Denying the averments in the Plaint, the Defendants 2 to 4 have filed the Written Statement, interalia contending that the First Plaintiff has executed a regular Sale Deed dated 22-02-1985 for a sale consideration of Rs. 18,000/- and the First Plaintiff has received full consideration and conveyed 2/9th share to the Defendants. The First Defendant's Husband Nooruddin Sahib has not received a sum of Rs. 3,800/-. The First Plaintiff ought to have valued the suit of his 2/9th share. The First Plaintiff is bound by the Sale Deed executed by him and hence, the Plaintiffs are not entitled for the relief of declaration sought for by them.
c) The trial commenced, P.W.1 was examined in chief, but, he was not cross-examined, despite adjourning the case for several hearings. Thereafter, the First Plaintiff's evidence was closed. On behalf of the Defendants, D.Ws. 1 and 2 were also examined. Thereafter, I.A. No. 5364 of 1996 was filed to reopen the evidence on the side of the First Plaintiff for recalling and cross-examination of P.W.1. While the Application was pending, P.W.1- the First Plaintiff died in 1998. The impugned order was passed in the Application on 17-8-2000, eschewing chief-examination of P.W.1 and directing the Plaintiffs that fresh evidence is to be adduced on their behalf, instead of recalling P.W.1 (in view of his death, the entire chief-examination was ordered to be eschewed).
3. Aggrieved over the order of eschewing the chief-examination of P.W.1, the Plaintiffs have preferred this Revision. The learned Senior Counsel for the Revision Petitioners Mr.M.Balasubramanian, assailed the impugned order contending that the trial Court has not properly appreciated the position; that despite several opportunities to the Defendants, they have not used the same in cross-examining the P.W.1. Contending that the probative value of P.W.1's evidence is to be determined only at a later stage, the learned Senior Counsel has submitted that the trial Court has committed serious error in eschewing the chief-examination of P.W.1. The learned Senior Counsel has further submitted that under no circumstance the evidence of the witness, who is dead, could be ordered to be eschewed. In support of his contention that the evidence cannot be eschewed and that its probative value could be gone into only at the later stage, the learned Senior Counsel for the Revision Petitioners has relied upon the decisions reported in AIR 1925 Madras 497 (Maharaja of Kolhapur v. Sundaram Ayyar) and 1998 Crl.L.J. 3494 (Food Inspector, Thodupuzha Circle v. James N.T.).
4. Countering the arguments, the learned counsel for the Respondents/Defendants has submitted that when the chief-examination of P.W.1 was not subjected to cross-examination, there is nothing wrong in eschewing his chief-examination and that the impugned order does not suffer from any infirmity warranting interference.
5. The only point that arises for consideration in this Revision is:-
"Whether in view of death of P.W.1, the trial Court was right in ordering eschewing of the chief-examination of P.W.1 and directing the Plaintiffs to adduce fresh evidence on their behalf."
6. Challenging the Sale Deed executed by the First Plaintiff (dated 22-2-1985), the Plaintiffs have filed the suit for declaration that the Sale Deed is illegal sham and nominal. Resisting the suit, the Defendants based their claim on the Sale Deed, contending that they have purchased the share of the First Plaintiff - the suit property for valid sale consideration of Rs. 18,000/- and that the sale is binding on the First Plaintiff. When the trial commenced, the First Plaintiff has examined himself as P.W.1. Despite several opportunities, P.W.1 was not cross-examined by the Defendants. The First Plaintiff's side evidence was closed. Onbehalf of the Defendants, D.Ws. 1 and 2 were also examined. Instead of filing the petition to reopen the evidence of First Plaintiff's side and recall P.W.1, the Defendants have filed the Application in I.A. No. 6828 of 1996 to set aside the exparte order passed against the Defendants 2 to 10 on 9-4-1996 (perhaps under the mistaken impression that an exparte decree was passed against them, while P.W.1 was in the box). I.A. No. 6828 of 1996 was dismissed. I.A. No. 5364 of 1996 was filed to reopen the evidence of First Plaintiff's side and recall P.W.1 for cross-examination. Before the Application could be taken up for disposal, the First Plaintiff - P.W.1 died.
7. We may refer to certain relevant dates:
Chief-Examination of P.W.1. ... 02-04-1996 Further Chief-Examination was adjourned to ... 04-04-1996 Cross-Examination of P.W.1 ... 08-04-1996 Cross-Examination of P.W.1 was adjourned to ... 09-04-1996 Evidence of P.W.1 was closed in ... April 1996 Petition was filed to recall P.W.1. ... August 1996 P.W.1 died in the year ... 1998 The Application in I.A. No. 5364 of 1996 was disposed of by the impugned order dt. ... 17-08-2000 Under the above circumstances, while passing the impugned order on 17-8-2000, the learned IV Assistant Judge has eschewed the chief-examination of P.W.1. The impugned order eschewing the chief-examination of P.W.1 is not in accordance with Section 33 of Indian Evidence Act. Section 33 of Indian Evidence Act deals with Statement of Person, whose evidence has been recorded, died and who cannot be called as witnesses in a subsequent Judicial Proceeding (or) in a later stage of the same Judicial Proceeding. Section 33 reads:-
"Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of providing, 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. "
Thus, Section 33 enables the Court to receive the statement of P.W.1/Chief Examination of P.W.1, who died prior to cross examination.
8. The Application of Section 33 of Indian Evidence Act is a matter of discretion. The Power under this Section in ordering relevancy of certain evidence is to be exercised with great caution. The Section deals with only relevancy, not with mode of proof (or) the contents thereon. Section 33 of Indian Evidence Act does not enjoin upon the Court that the Statement of a witness examined in the proceeding at the earliest stage must be believed. It only makes the statement of a witness (who is dead (or) not available at the later stage), admissible in evidence. (It is open to the opponent/Defendants to urge their contention that the recorded statement of the witness(P.W.1) cannot be looked into.) At this stage, the Defendants could have no valid objection as to the relevancy of statement of P.W.1, who died in 1998-- prior to his cross examination.
9. In support of the contention that the statement of a witness, who died before the cross-examination is admissible, the learned Senior Counsel for the Revision Petitioners has relied upon the decision reported in AIR 1925 Madras 497 (Page 537) (Maharaja of Kolhapur v. Sundaram Ayyar), wherein, it was held that, "the evidence of a witness, who died before cross-examination is admissible, but, the weight to be attached to such evidence should depend upon the circumstances of each case". For the similar view that the evidence of a witness, who died prior to the cross-examination is admissible in evidence, the learned Senior counsel has relied upon the decision reported in 1998 Crl.L.J. 3494 (Food Inspector, Thodupuzha Circle v. James N.T.), wherein, the learned Judge of Kerala High Court has held thus:-
"...The general proposition that the evidence of a witness who is not subjected to cross-examination cannot be looked into, cannot be disputed. But the question to be considered in this case is whether the evidence of P.W.1 who was examined in chief and was not available for cross-examination due to his death in the meanwhile, is admissible in evidence or not. The principles laid down in the decisions relied upon by the counsel for the appellant referred to above clearly establish that the evidence of a witness who could not be subjected to cross-examination due to his death before he could be cross-examined, is admissible in evidence, though the evidentiary value will depend upon the facts and circumstances of the case...."
Considering the case in hand, in the light of the above decisions, we find that the lower Court was not at all justified in discarding the chief-examination of P.W.1 on the ground that he is not available for cross-examination. The learned IV Assistant Judge has not taken note of the fact that several opportunities were afforded to the Defendants for cross-examination of the First Plaintiff- P.W.1.
10. The Suit is one for declaration that the Sale Deed is not binding on the Plaintiffs. The Deceased First Plaintiff is the key witness. If his evidence is ordered to be eschewed, great prejudice would be caused to the Revision Petitioners/Plaintiffs. The impugned order is not sustainable and is to be set aside. It is open to the Defendants to put-forth their contention that the recorded statement of P.W.1 cannot be looked into and the lower Court may consider the same in accordance with settled position of law.
11. For the foregoing reasons,the order of IV Assistant Judge, City Civil Court, Chennai, made in I.A. No. 5364 of 1996 in O.S. No. 1707 of 1988 dated 17-08-2000, is set aside and this Revision Petition is allowed. Consequently, the connected C.M.P.Nos. 13723 of 2000, 20866 and 20867 of 2003 are closed. The learned IV Assistant Judge is directed to restore the evidence of P.W.1 given in chief-examination to file. The trial Court is further directed to expedite the trial in O.S. No. 1707 of 1988 and dispose of the same expeditiously in accordance with law. In the circumstances of the case, there is no order as to costs.