The first proviso to section 33 of the Evidence Act is satisfied when the interest of the relevant party to the second proceeding in the subject-matter of the first proceeding is consistent with and not antagonistic to the interest therein of the relevant party to the first proceeding, and the interest of both in the answer to be given to the particular question in issue in the first proceeding is identical.

( 1 ) THIS Civil Revision Petition is filed as against the order of the District Judge of West Godavari, Eluru in I. A. No. 1222 of 1953 in O. S. No. 45 of 1950, refusing to admit in evidence the depositions of certain witnesses, in O. S. No. 26 of 1930, on the file of the Agency Munsif s Court, Polavaram, under section 33 of the Indian Evidence Act. One of the questions to be decided in the present suit is, whether Veeranna, the husband of the 2nd defendant and father of the 3rd defendant, was the adopted son of Tirupati Rayudu. The plaintiff is the daughter and the 1st defendant is the widow of Tirupati rayudu. The depositions, sought to be marked in evidence under section 33 of the Evidence Act, were those recorded in O. S. No. 26 of 1930 on the file of the Agency Munsif s Court, Polavaram. That was a suit filed by Veeranna against Khandavilli Pullayya, a debtor of Tirupati Rayudu s estate. The defence put forward by Pullayya was that Veeranna was not the adopted son of Tirupati ravudu and had consequently no locus standi to sue for recovery of the money due to Tirupati Rayudu s estate. Six witnesses were examined on behalf of veeranna to prove that he was the adopted son. Except one, the other five witnesses are all dead. Consequently, defendants 2 and 3 filed an application under section 151, Civil Procedure Code to admit the prior depositions in evidence. The Court below rejected the application holding that the first proviso to section 33 of the Evidence Act did not apply. The Revision Petition is filed against that order.

( 2 ) THE short question for consideration is, whether the principles laid down in krishnayya Rao v. Raja of Pittapur, (1933) 65 M. L. J. 479: L. R. 60 I. A. 336: I. L. R. 57 Mad. 1 (P. C. ). do not directly apply to the facts of the present case. Having carefully perused the judgment of the Judicial Committee, i have no doubt that all the requirements of section 33 of the Evidence Act are satisfied in this case and that the decision of the Court below is clearly erroneous. Omitting the words which are inapplicable, the section runs thus:-"evidence given by a witness in a judicial proceeding. . . is relevant for the purpose of proving in a subsequent judicial proceeding. . . the truth of the facts which it states when the witness is dead. 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".

( 3 ) THE proviso is three-fold and it is not disputed that the second proviso is ful- filled in the present case. The third proviso is also fulfilled as it is not necessary that all the questions in issue in the two proceedings should be substantially the same. So, the main question that falls to be determined in the Revision Petition is, whether the terms of the first proviso are satisfied. Lord Russel of Killowen, in delivering the judgment of the Judicial Committee in Krishnayya Rao v. Raia of Pittapur, held, that whatever might have been the intention of those who framed the section, the first proviso exactly inverted the requirements of the english law and that this inversion should not be considered as accidental. The following passages set out clearly the construction placed by their Lordships on the first proviso and they are as follows:- " it will be a question depending for its correct answer upon the circumstances of each case where the question arises, whether there was a party to the first proceeding who was a representative in interest of a party to the second proceeding within the wider meaning which their Lordships attribute to those words.

( 4 ) TURNING back to the first proviso, it requires, in their Lordships view, that the party to the first proceeding should have represented in interest the party to the second proceeding in relation to the question in issue in

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