Andhra Pradesh High Court - Amravati
Telanakula Kasi Viswanadham vs Pokuri Maruthi Prasad on 25 April, 2019
HIGH COURT OF ANDHRA PRADESH AMARAVATHI THURSDAY, THE TWENTY FIFTH DAY OF APRIL TWO THOUSAND AND NINETEEN | 'PRESENT: THE HONOURABLE SRI JUSTICE M.SEETHARAMA MURT! CIVIL REVISION PETITION NO: 4853 OF 2018 Petition under Article 227 of the Constitution of India against the order dated 05/10/2018 passed in G.W.0.P.No.1 of 2014, Dated 24-07-2018, on the file the Court of the X Additional District Judge, Gurazala, Guntur District, Andhra Pradesh. -- Between: Telanakula Kasi Viswanadham S/o Basavaiah, Age 55 years, Occ. Business, Rio D.Na.8-291, Opp. R and B Bungalow, Narayanapuram Village, Dachepalli Mandel, Guntur District, Andhra Pradesh. Petitioner / Respondent _- AND Pokuri Maruthi Prasad S/o.Adaiah, Age 35 years, R/o D.No.5-1-106, Near Siva Statue, Narasaraopet, Guntur District, Andhra Pradesh Respondent / Petitioner, _- IANO: 1 OF 2018 - Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay ail further proceedings in G.W.O.P NO.1 of 2014, on the file of the Court of the X Additional District Judge, Gurazala, Guntur District, Andhara Pradesh, Pending disposal of C.R.P before this Hon'ble court. «7 Counsel for the Petitioner ; Dr.Challa Srinivasa Recidy, Advocate .- Counsel for the Respondent : Smt. T.V.Sridevi, Adovocate. The Court made the following ORDER: teeter So erp nie natin gyn ey ee nc sane acing tot tone ey neat cata eae MSSM ISHII EMPISEDLD NCA SA TANDRIDGE aD UM GR LUE ect Leann LETS thts ea en eye paws a eat aN yttateitettete tite THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI CIVIL REVISION PETTTION No.4853 of 2018 ORDER:
The unsuccesstul respondent in GWOP.ne.d of 2014 on the file of the Court of the learned N Additional Diserict judge, Gurazala, filed this Civil Revision Petition, under Article 227 of the Constitution of India, beige agerieved of the intermediary order, dated 24.07.2018, passed by the said learned Judge in the afore-stated GWOP.
2, tT have heard the submissions af Dr Challa Srinivasa Reddy, learned counsel, appearing for the Revision Petitioner/ respondent, Chereinafter, 'respondent', and oof Ms. WN. Sridevi, learned counsel for the respondent/petiioner, (hercinafter, 'petitioner. 1 have perused the material record.
3, 'The introductory facts, in brief, are as follows:
'The petitioner tied the afore-stated GWOP for appointing him as mataral guardian of a minor girl, Pokuri Neeraja, and for granting the custody of the said girl to him, he being the father of the said girl, The respondent, whe is the raternal grandfather of the said girl,is resisting the sad OP. During the course of erial, when the petitioner was bene examined as PW, the learned counsel for the respondent confronted his Sa, Ne My MSRM.
CRP 4853 2018 previous deposition (AW T's previous deposition) in MC.ne.25 of 2012 on the file of the learned Judicial Magistrate of Tirst Class-curn-I Additional Junior Civil Judge, Gutazala, and requested the trial Court to mark a portion of the said deposition viz. examination in chick, Zeer af, contending that a party like the respondent is entitled to cross examine the petitioner like PW) with respect to his previous statements made on oath betore a competent Court and that such witness can be contradicted by drawing his attention to the contents of his earlier deposition and that the earlier deposition can be used for the purpose of contradiction. Learned counsel for the petitioner Opposed for such marking ofa perton of the deposition. "Vhe trial Court by the impugned order refused to grant permission to mark the portian of his (PTs) carlier deposition viz. chief examination in MC.no.25 of 2012 wherein he was examined as RWI. 'The trial Court in the concluding portion of the order, which is impuened, held rembearia as Follows: ~ "The proper course would be to cross examine PW] on the basis of bis previous statement given in a judicial proce edirig and te cite him attention te reley vant pordarn of his evidence and then mark the entire docurnent as exhibit but sot only a portion of carlicr staternent which is not contradicted gor admitted since PWT did not give a perfectly satist actorily explanation, in such event portion in the previous statement which woud otherwise be contr: adetory would ne longer be go to contradict ot challenge the teslirnony of witness.
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CRP 4853. 2018 Agerieved of the orders of the learned trial judge, the respondene filed this revision before this Court.
4, Learned counsel for the revision petitioner --~ respondent in the OP, while reiterating the contentions of the respondent, which were advanced before the Court beloav, contended as follows:
PWT figured as a witness in MC.no.25 of 2012 and gave evidence as RAW. Phe sard MC is a previous proceeding between the same parties, that as, the petitioner and the respondent in the instant OP. The respondent herein js the maternal grandfather of the girl child. After the death of the mother of the child, he is taking care of the girl child and looking after her welfare. In the said MC, he (PWL herein) admitted in his cross examination that he ts not having suflicient means and that he is dependent upon his parents. During the course of his crass examination in this OP a portion of his said prewious deposition related to the abowe aspect was sought to be confronted to him for being marked as a contradiction. Vhough such a portion of the depasition of the witness can be marked for the purpose of contradicting the witness, after drawing the attention of the witness to that portion of the earlier deposition, the tral Court erroncously declined to grant the request for maskin eg the confronted portion of the previous a MSRM,J CRP 4853 2018 deposition of PW by erroneously holding that a portion of the deposition cannot be marked and thac the entire deposition has te be marked. Such a view OF the trial Court is totally crroucous, When the witness is very much alive, it is impermissible to mark his entire previous deposition. When a witness makes a statement in the present deposition, which is contrary to his stitement made in his previous depasition, he can be confronted with the relevant portion of his Statement in the previous deposition, which runs contrary to his statement in his present deposition. If he still maintains a comtracictory stand, the conttonted contradictory portion in the earlier deposition can be marked as an exhibit. However, if he adinits that in his previous deposition he deposed contrary to the present deposition, the said adnussion can be recorded and it becomes part of the present deposition. In such an event, there is ne need to mark any portion of the previous deposition in view of his admission. But the course adopted by the trial Court and its observation in the impugned order that the entire deposition ought to be marked is contrary to the settled legal position,
5. Learned counsel for the peutioner in the Op (PWT), chat is, the respondent herein supported the orders of the trial Court and contended that in view of the statements made in the entice previenss deposition, mere marking a portion of 4 previous deposition would cause prejudice and, Bae MSRM CRP 4853 2018 therefore, the best course is to mark in che present case, the entre previous deposition of PWT and nora portion oF it.
G. In reply, learned counsel for the revision petitioner -- respondent contended that if any other portion other than the portion canfronted is also ta be marked to clarify the position, then it is always open to the counsel for PWT to conduct re cxamination or re examination in chief with the permission of the Court and mark any other portion of the same previous deposition but under no circumstances, entire deposition of a witness can be marked, more particularly when the witness is very much available for being examined and is being examined as a witness PETS before the Court.
~J | have given earnest consideration to the facis and submissions.
8. Itis profitable to refer to the legal position obtaining. 29 section 33 of the Indian [vicence Act, 1872, reads as under:
section. 33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated, fnadence given by a witness ina judicial proceeding, or before any person authored by law ta take it, is relevane for che purpose of proving, ina subsequent judicial proceeding, or ina 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 6 MSRM.J CRP 4853. 2018 way by the adverse patty, or Uf his presence cannot be obtained without an amount of delay ar 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 OPPOrtuMAly tO CPOSs-CNAIMANIEY that the questens in issue were substantially the sanie in the first as in the second proceeding.
Uxplanation. <-- A erirunal erial or inquiry shall be deemed to be a proceeding between the prosccutar and the accused within the meaning of this section.
A plain reading of this Section retleets that ane of the following conditions has to be folfilled for the previous deposition to be admissible ina subsequent fudicial proceeding or in the later part of the judictal proceedings.
The person/witness who made the deposition in the former judicial proceeding must be shown to be unavailable for the following reasetis --
pare) tN the witness is dead;
(1) the witness cannat be found:
Gu} the watness has became incapable of giving evidence;
MSRM.J CRP_ 4853 2018 (wv) the attendance of the witness cannot be procured without any amount of delay or expense, which appear to the Court unreasonable; and, () the witness is kept out of the way by the adverse party, In the case on hand the witness is very much available and is being examined as PW] and hence the question of markin ge of his entire deposition given in the former judicial proceeding docs not arise for consideration, Sections 17, 21 and 145 of the Indian Rartdence Act, 1872, read as 3 under:
Section 17. Admission defined.
An admission is a statement, oral or documentary or contained in electronic form, which sugeests any inference as to any fact in issuc or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned.
Section 21. Proof of admissions against. persons. making them, and by or on their behalf, Admissions are relevant and may be proved as against the person who makes them or his representative in interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases: --~ (1) An admission may be proved by or on behalf af the person making it, when it is of such a nature that, if the person 8 MSRM CRP A853 2018 making it were dead, it would be relevant as between third persons under section 32, (2) An ackmission may be proved by or on behalf of the person making it, when ib consists of a statement of the existence of any state of mind ar body, relevant er in issue, ride at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable.
(3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission.
section 145. Cross-cxamination as to previous statements in writing.
A witness muy be crossexamined as to previous statements made by him in writing or reduced into writing, and relevant to matters In question, wither such writing being shown ta him, or being proved; but, if itis intended to contradict him by the writing, fis attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
In BHITARAT SINGH AND OVERS ¥.
MST. BEIGIRATHT (AIR 1966 SC 405) the Supreme Court indicated the scape of Scetion LS of the Lividence Act, thus:
"To. Admissions have to be clear if they are to be used against the person making them, Admissions are substantive evidence by themselves, in view of Ss. 17 and 21 of the Indian Mvidence Act, though they are ret conclusive proof of the matiers admutred. We are of opinion that the admissions duly proved are admussible eviderce irrespective of whether the party making ther appeared in the witness box or not and whether that party when appearing as witness was confronted with MSRM, CRP_4853 2018 th Ose Statements i ca se ibm ade as tatement contra ry ta the Sc admissions. The purpose of con tradicting the witness under S145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact acknitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What ¥ eight is to be attached to an adinission made by a party is a matter different tram its use as admissible evidence."
The Supreme Court in BISWANATHL PRASAD AND OTHERS V. DWARKA PRASAD AND OTHERS (AIR 1974 SC
117) considered the distinetion between substantive evidence and the Prior statement of a witness used for the Purpose of contradiction and explained the legal position thus:
case oF the revision pectitione "There is a cardinal distinction between a party whe is the author ofa prior statement and a witness who is exarmuned and is sought to be discredited by use of his prior statement. In the former case an admission by a party is substantive evidence if it fulfills the requirements of 8.21 6f the Evidence Act: in the later case a prior statement is used to discredit the credibility ot the witness and does not become substantive evidence. In the former there is non ecessary requirement of the starement containing the admission having to be put to the party because it is evidence proprio vigore: in the latter case the Court cannot be invited to disbelieve a witness on the streneth of a prior contradictory statement unless it has been put to hum, as required by S.145 of the Ewidence Act."
In view of the above precedential guidance, it is clear that as it is the r/respondent in the instant OP that the witness MSRM J CRP 4853 2018 (PWT) made a statement in his present deposition contrary to cettain admissions, which he made in the deposition given. by him in the former judicial proceeding, the contrary statements in his said previous cdepesition = can be confronted to him in his cross-cxamuneion; and, on such controntation, if he admits the confronted Portions or statemerits in his previous deposition, such admissions can be tecorded by the trial Court ia his present deposition: hawever, if on such controntation, he denies the previous statements in his previous/tormer deposition, which are contrary ta his staternents in his present deposition, then the confronted portions only of the previous deposition given in former judicial proceeding can be permitted te 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 abtainin &.
f0. Qn the above analysis, this Court finds that the order impugned brooks intertercace.
Ti. In the result the civil revision petition is alowed and the impugned order is set aside. "Che tal Court is now directed to permit the course! for the revision petitioner/ respondent in the OP ro further cross-examine PAX' | and elicit auswers by confronting to him the portions in his deposition ¢iven Keon o, eee MSRMJ -
CRP 4853 2018 in former judicial Proceeding, which are or which 'Ppear to be contrary to his statements in his present deposition and record his answers / admissions, in the event he admits the Pertions of his previous depasitian, which are confronted to hin of in the alternative permit to be marked arly such cantronted portions of his (previous) epesivion given in. former judicial Proceeding, if he does not admi tthe same. As q sequel to this order, the trial Court shall sre avety tecall the witness ~ PW for the above purpose, if the evidence of the said witness is already closed. Tt is needless to state thar in the event certain portions from the previous deposition of PW are thus markecl, it ts always Open to the counsel for PWT bo seek Permussion of the Court to re-examine or to farther examine in chief, the said witness and ir is for the trial Court ta cansider the said Pequests as per law and procedure, having tegard to the frets and circumstances of the case, There shall be y O order as to costs.
Miscellaneous petitions, if any, pending in this revision Shall stand SARIN tee ae a EN LATE encanta Met ertennn tense ste lee At NN EEE ASSISTANT REGISTRAR ff TRUE COPY // :
SECTION OFFICER One Fair Copy to the Hon'ble SRI JUSTICE M.SEETHARAMA MURTI (For His Lordships Kind Perusal) Ke The X Additional District Judge, Gurazala, Guntur District, A.P. The Under Secretary, Union of India, Ministry of Law, Justice & Company alhi, . . . . © s.
The Suerte ee. Advocates' Association Library, High Court Buildings, aravati, One CC to Dr.Challa Srinivasa Reddy, Advocate [OPUC] One CC to Smt.T.V.Sridevi, Advocate [OPUC] Two C.D. Copies &B wON-
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