Sunil Dutta Mishra, J. – Heard learned counsel for the parties.

2. The present application has been filed against the order dated 16.09.2017 passed in Title Suit No. 1482 of 2013 passed by learned Sub-Judge-VII, Muzaffarpur whereby and whereunder the learned Trial Court allowed the petition of plaintiff to expunge the evidence of P.W.-3, Padma Raman Pathak, who died after his examination-in-chief and part cross-examination.

3. The facts, in brief, are that the petitioner/plaintiff filed a suit bearing Suit No. 1482 of 2013 for declaration that the Sale Deed No. 8233 dated 19.03.2013 is void, fraudulent, illegal, inoperative and without consideration and has not confer any title or interest to the defendant/respondent over any part of the suit property described in Schedule-1 of the plaint.

During the trial the plaintiffs brought on Padma Raman Pathak (P.W.-3) whose examination-in-chief was filed on 23.05.2017 thereafter the defendant partly cross-examined the said witness and it was deferred for further cross-examination but unfortunately the said witness died which was informed to the Court. The defendant filed a petition dated 11.07.2017 with a prayer to expunge the evidence of P.W.-3, Padma Raman Pathak, as his cross-examination could not have been made complete which was allowed vide the impugned order.

4. Learned counsel for the petitioner has submitted that the Trial Court has not assigned any reason with regard to allowing of the petition of defendant for expunging the evidence of witness P.W.-3. It is further submitted that in the event of death or serious illness of a witness between his examination-in-chief and his cross-examination the evidences previously given by him is admissible though the degree of weight to be attached to it is of course a question of fact but in the present case the Trial Court has entirely thrown the evidence of P.W.-3 which is not permissible.

5. Learned counsel appearing on behalf of the respondent, however, supported the impugned order. He has submitted that unless the witness was cross-examined, the effect of second proviso of Section 33 of Indian Evidence Act is not applicable and, therefore, the impugned order was rightly passed as it relates to expunging of evidence of P.W.-3.

6. The issue involved in this application is whether the learned Trial Court committed error in expunging the evidence (examination-in-chief and part cross-examination) of P.W.-3 who died before the completion of his further cross-examination or the same ought to have been allowed to servive for the limited purpose of Section 33 of the Evidence Act.

7. In this connection, it would be relevant to quote the provisions of Section 33 of the Evidence Act, 1872 for ready reference: –

“33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated: – Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, 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.

Explanation. – A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.”

8. Section 33 of the Indian Evidence Act, 1872 deals with the relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts the