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High Court Of Calcutta
KALYAN JYOTI SENGUPTA
DEVER PARK BUILDERS PVT.LIMITED - Appellant
Versus
MADHURI JALAN - Respondent
G. A. 1350 Of 2002
Decided On : 09/09/2002
EVIDENCE - ADMISSIBILITY - WITNESS - DEATH DURING CROSS-EXAMINATION - COURT'S DISCRETION - WEIGHT TO BE ATTACHED - CIVIL PROCEDURE CODE, ORDER XXVI, RULES 1, 2, 3, 7, 8, 9 AND 10 - ORDER XXIX, RULES 7, 8, 9 AND 10 - HIGH COURT RULES, ORIGINAL SIDE, CHAPTER XXII, RULES 1, 2, 3, 4 AND 5 - EVIDENCE ACT, SECTION 33.
Fact of the Case:
The original defendant No. 1 Mahabir Prasad Jalan, since deceased, was examined in chief and part cross-examination in a commission. The plaintiff sought to expunge the evidence of the deceased defendant on the ground that cross-examination could not be completed due to his death.
Finding of the Court:
The court held that the evidence of the deceased defendant was admissible and the court was bound to consider its weight to be attached for deciding the matter. The court further held that each and every proof in examination in chief does not require being cross-examined and that a portion of the examination-in-chief that had been cross-examined should be absolutely admissible in evidence.
Issues: Whether the evidence of a witness who died before cross-examination could be admitted.
Ratio Decidendi: The court relied on various precedents to hold that the evidence of a witness who died before cross-examination could be admitted, but the weight to be attached to it depended upon the circumstances of each case. The court also held that there was no provision in the Evidence Act that evidence of a witness who has been examined by the Court upon oath shall be excluded because it has not been possible for the other party to cross-examine him.
Final Decision: The court recalled its earlier order expunging the evidence of the deceased defendant and admitted the document and evidence already received in commission as records of the case.
( 1 ) IN this extraordinary suit the short but complex point has been raised by the parties as to whether the evidence recorded by the original defendant No. 1 Mahabir Prasad Jalan, since deceased on commission should be expunged and/or rejected at this stage, as, cross-examination could not be completed in view of his death during examination.
( 2 ) BY my order dated 18/07/2001, though having heard the learned Lawyer for the plaintiff I expunged the evidence of the aforesaid defendant, however, subsequently I granted stay of operation of the aforesaid order and I decided to resolve the issue raised above.
( 3 ) MR. Bimal Kumar Chatterjee, Senior Advocate appearing with Mr. Ajoy Krishna Chatterjee Senior Advocate contends that it is true the original defendant did not get opportunity to face cross-examination fully in view of his death. However, evidence so far given by him in his full examination in chief and in part cross-examination together with document exhibited in the commission should be admitted, but the weight of such evidence should be attached such degree and standard as this Court will think fit and proper. Therefore, his evidence cannot be rejected or expunged altogether, as he was not cross-examined fully for no fault of his own. He was seriously ill during the relevant time. From time to time attempt was made to cross-examine him and he was prepared to face it. This could not happen. So far this reason entire evidence should not be brushed aside. They seek support for their contention of the provision of Order XXVI, Rules 1, 2, 3, 7, 8, 9 and 10 of the Code of Civil Procedure, Order XXIX, Rules 7, 8, 9 and 10 of CPC, Rules 1, 2, 3, 4 and 5 of Chapter XXII of the High Court Rules, Original Side, Section 33 of the Evidence Act and Sarkar on Evidence (15th Edn.) Vol. 1, Pg. 750. They have placed several decisions of various High Courts and Supreme Court that have decided the aforesaid question both in Civil and Criminal Cases.
( 4 ) FOLLOWING are the decisions in support of their point which are rendered in civil cases; (i) AIR 1925 Mad 497 (Maharaja of Kolapur v. S. Sunderam Aya; (ii) AIR 1944 All 188 (2) Ahmad Ali v. Joti Prasad); (iii) AIR 1935 Pat 34 (Mr. Horli Kumar v. Rajab Ali); (iv) (1912) 16 CWN 991 (W. Stewart v. The New Zealand Ins. Co. Ltd.);
(v) (1901) 5 CWN 230 (Boisagomoff v. The Nahapiet Jute Co. Ltd.); (vi) (1910) 11 CLJ 124 (Chatoo Kumari v. Rajaram Tiwari);
( 5 ) FOLLOWING are the decisions decided in Criminal cases on the aforesaid point; (i) AIR 1929 Lah 840 (2) (Mangal Sen v. Emperor); (ii) AIR 1933 Lah 561 (Diwan Singh v. The Emperor); (iii) AIR 1952 Mad 165 (In Re. Bora Narasimhulu); (iv) AIR 1970 Orissa 100 (Chitamoni Das v. The State); (v) AIR 1946 Pat 384 (Srikisun Jhunjhunwala v. Emperor); (vi) AIR 1974 SC 1723 : (1974 Cri LJ 1171), Mulkh Raj v. Delhi Admn.); (vii) 2001 (Suppl 1) JT (SC) 545, Satnam Singh v. Sadhu Singh.
( 6 ) MR. Rajat Ghosh at one point of time appeared and thereafter Mr. Pijush Kanti Dutt, Senior Advocate argued on behalf of the plaintiff and contended that the evidence of the deceased defendant cannot be admitted , before as any cross-examination in real sense could be done he had passed away. His contention is that unless evidence of a particular witness is tested and screened by cross-examination, it is no evidence. He has drawn my attention to a summary prepared by him of the evidence given by the deceased defendant in examination-in-chief and in cross-examination and urges that in real sense there was no cross-examination. So his contention is that under Section 33 of the Evidence Act his evidence has to be expunged and the order passed by me should not be recalled and that was accurate order in these circumstances.
( 7 ) IN support of his contention he has relied on the following decisions : (i) AIR 1928 All 140 (Narsinghdas v. Gokul Prasad); (ii) AIR 1930 PC 79 (Dal Bahadur Singh v. Bijai Bahadur Singh); (iii) AIR 1950 Cal 435 (S
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