This notice of motion taken out by the plaintiffs was rejected for the reasons to be recorded. Accordingly, reasons with factual backdrop is being recorded.

2. The notice of motion claimed following relief:

"(a) That this Hon'ble Court be pleased to direct the Learned Additional Chief Metropolitan Magistrate, 47th Court at Esplanade, Bombay (who is presently trying the. case) (i) to transmit the evidence of Dr. Earnest Greenberg of New York (U.S.A.) recorded by Commissioner, Ms. Usha Aiyar, Addl. Chief' Metropolitan Magistrate, Mumbai, as per Order of the Hon'ble Supreme Court of India, dated 1st April, 2003 in Appeal No. 476 of 2003 in case of (State of Maharashtra Vs. Dc P.B. Desai & Dr. A.K. Mukherjee)l, being C.C. No. 82/P/1998 now C.C. No. 92/PW/2005 to this Honourable Court or in the alternative to allow the plaintiff No.1 above named to produce in this Hon'ble Court certified copy of above said evidence of Dr. Greenberg in lieu of it and

(ii) read the said evidence of Dr. Greenberg recorded through video conferencing in C.C. No. 82/P/ 1998 now C.C. No. 92/PW/2005 in this Suit for decision in this suit in the interest of justice;"

Background for Notice of Motion:

3. The plaintiff No. 1 in support of the notice of motion has filed affidavit dated 28th February, 2007 giving background to seek relief mentioned hereinabove. According to plaintiff No.1, one of his Advocate friends has told him that the evidence of Dr. Earnest Greenberg, New York, recorded in C.C. No. 82/P/1998 now C.C. No. 92/PW /2005 can be used for the decision of the present suit. In the Affidavit, details of the criminal prosecution faced by Dr. P.B. Desai and Dr. A.K. Mukherjee, defendant• Nos. 1 and 2 herein are given. It is also stated, that the evidence of Dr. Greenberg was recorded in the criminal prosecution wherein the defendant Nos. 1 and 2 are being prosecuted for having committed offence under section 338 read with' section 114 of Indian Penal Code. That evidence of Dr. Greenberg was recorded through video conferencing. He was thoroughly cross-examined by defendant Nos. 1 and 2 through video conferencing. That Dr. Greenberg is now 78 years of age and he cannot come to India. His presence cannot be obtained in view of his advance age and that he had expressed his unwillingness to come to India even on earlier occasion. In view of financial difficulties, it is also not possible for the plaintiffs to seek his presence from New York to India. The plaintiffs have, thus, prayed that considering provision of section 33 of the Evidence Act, 1872 ("Act" for short), they be permitted to produce certified copies of the evidence of Dr. Greenberg recorded in criminal case and be further permitted to use the same in the present suit.

4. The above prayer made is opposed by defendant No. 1 and other defendants, who are trustees of the Bombay Hospital, whereas defendant No.2 has supported the prayer made by the plaintiffs. The defendant Nos. 7, 10 and 12 to 14 have also filed their joint counter Affidavit raising various factual and legal contentions referred to hereinafter.

Rival Submissions:

5. Mr. Bharat Joshi, learned Counsel appearing for the plaintiffs has urged that the prayer made is well within the scope of section 33 of the Evidence Act.' He submits that by no stretch of imagination the defendant Nos. 1 and 2 can say that they had no opportunity to cross-examine Dr. Greenberg and that the subject matter of criminal prosecution and the present suit is substantially the same as such the evidence recorded in the criminal proceeding can be used in1 present suit against defendant Nos. 1 and 2.

6. Mr. Joshi, learned Counsel for the plaintiffs while reiterating factual aspects of the matter advanced his submissions in consonance with Affidavit of plaintiff No. 1 filed (in support of notice of motion. He, thus, prayed that plaintiffs be permitted to f1le certified copies of evidence of Dr. Greenberg recorded in C.C. No. 82/P/1998 now C.C. No. 92/ PW /20