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High Court of Judicature at Madras
THE HONOURABLE MRS. JUSTICE R.BANUMATHI
Kurshid Begum & Others - Appellant
Versus
Amni Jan & Others - Respondents
C.R.P.(P.D.) NO. 2579 of 2000 and C.M.P.Nos. 13723 of 2000, 20866 and 20867 of 2003
Decided On : 26 July 2005
Eschewing - Sale Deed - Indian Evidence Act, Section 33 - The court discussed the relevance of the statement of a deceased witness, the discretion of the court in ordering relevancy of evidence, and the admissibility of the evidence of a witness who died before cross-examination. The court referred to Section 33 of the Indian Evidence Act and relevant case law to conclude that the lower court was not justified in discarding the chief-examination of the deceased witness and ordered the restoration of the evidence for further trial.
Fact of the Case:
The suit involved a dispute over the sale deed of a property, with the plaintiffs seeking a declaration that the sale deed was illegal, sham, and nominal. The deceased first plaintiff was a key witness in the case.
Finding of the Court:
The court found that the lower court's order to eschew the chief-examination of the deceased witness was not justified and ordered the restoration of the evidence for further trial.
Issues: The main issue was whether the trial court was right in ordering eschewing of the chief-examination of the deceased witness and directing the plaintiffs to adduce fresh evidence on their behalf.
Ratio Decidendi: The court held that the lower court was not justified in discarding the chief-examination of the deceased witness and ordered the restoration of the evidence for further trial.
Final Decision: The order of the lower court was set aside, and the revision petition was allowed. The trial court was directed to restore the evidence of the deceased witness given in chief-examination to file and to expedite the trial in accordance with the law.
Key Points:
The core issue in this case involves the admissibility of the evidence of a deceased witness and the court’s discretion under Section 33 of the Indian Evidence Act regarding such evidence (!) (!) .
The trial court had ordered the eschewing (excluding) of the chief-examination of the deceased witness, P.W.1, on the grounds that he was not available for cross-examination due to his death (!) .
The appellate court found this order to be unjustified, emphasizing that Section 33 of the Indian Evidence Act allows the court to admit the statement of a witness who is dead, provided certain conditions are met, including that the evidence was recorded in a proceeding between the same parties or their representatives and that the opportunity for cross-examination was available in the earlier proceeding (!) (!) .
The court clarified that the exercise of discretion under Section 33 must be done cautiously and that the section pertains to relevancy, not the mode or weight of proof. The statement of a deceased witness is only admissible as relevant evidence, and its probative value depends on the circumstances of each case (!) (!) .
The court highlighted that the evidence of a witness who died before cross-examination can still be considered admissible, especially if the opportunity for cross-examination was previously provided, and the evidence was recorded in a manner that satisfies the legal requirements (!) (!) .
The decision underscores that the lower court's exclusion of the chief-examination was not justified, given that the opportunity for cross-examination was previously granted, and the evidence was properly recorded. The appellate court directed the trial court to restore the evidence of the deceased witness and to proceed with the trial expeditiously (!) (!) .
Overall, the ruling emphasizes that the relevancy and admissibility of evidence under Section 33 are matters within the court’s discretion, which must be exercised carefully, considering the specific facts and circumstances of each case.
This Revision is directed against the order of IV Assistant Judge, City Civil Court, Chennai, made in I.A.No.5364 of 1996 in O.S.No.1707 of 1988 dated 17-08-2000, Ordering eschewing of the evidence of P.W.1. The Plaintiffs are the Revision Petitioners.
2. The relevant facts for disposal of this Revision Petition could briefly be stated thus :-
a) O.S.No.1707 of 1988:- The suit relates to 2/9th share of the house, bearing new Door No.8 in Habibullah Sahib Street, Triplicane, Chennai. The First Plaintiff and the Defendants 1 to 4 are brothers and sisters respectively. The Defendants 5 to 10 are the legal heirs of the deceased First Defendant. The First Plaintiff has got 2/9th share in the suit immovable property. While, the First Plaintiff was living in the suit property with his wife, differences arose between him and his wife. To settle the dispute between the First Plaintiff and his wife, the First Defendant's Husband Nooruddin Sahib advised the First Plaintiff to transfer the property in favour of Defendants 1 to 4. To set right the behaviour of his wife, in good faith, the First Plaintiff has executed the document under the impression that he is executing the Settlement Deed in favour of the Defendants. Later, the Defendants have agreed to reconvey the property to the First Plaintiff. The Husband of the First Defendant, namely, Nooruddin Sahib, received a sum of Rs.3,800/- on or about 15-02-1987, for the expenses of the Release Deed; but, he had postponed the execution of the Document. Hence, the First Plaintiff has issued a legal Notice to the First Defendant's Husband on 29.12.1987. Despite issuance of Notice, the Defendants 1 to 4 have not reconveyed the property by executing the Sale Deed. Hence, the Plaintiffs have filed the Suit for declaration that the Sale Deed dated 22-02-1985 is illegal, sham and nominal and for other reliefs.
b) Denying the averments in the Plaint, the Defendants 2 to 4 have filed the Written Statement, interalia contending that the First Plaintiff has executed a regular Sale Deed dated 22-02-1985 for a sale consideration of Rs.18,000/- and the First Plaintiff has received full consideration and conveyed 2/9th share to the Defendants. The First Defendant's Husband Nooruddin Sahib has not received a sum of Rs.3,800/-. The First Plaintiff ought to have valued the suit of his 2/9th share. The First Plaintiff is bound by the Sale Deed executed by him and hence, the Plaintiffs are not entitled for the relief of declaration sought for by them.
c) The trial commenced, P.W.1 was examined in chief, but, he was not cross-examined, despite adjourning the case for several hearings. Thereafter, the First Plaintiff's evidence was closed. On behalf of the Defendants, D.Ws. 1 and 2 were also examined. Thereafter, I.A.No.5364 of 1996 was filed to reopen the evidence on the side of the First Plaintiff for recalling and cross-examination of P.W.1. While the Application was pending, P.W.1- the First Plaintiff died in 1998. The impugned order was passed in the Application on 17-8-2000, eschewing chief-examination of P.W.1 and directing the Plaintiffs that fresh evidence is to be adduced on their behalf, instead of recalling P.W.1 (in view of his death, the entire chief-examination was ordered to be eschewed).
3. Aggrieved over the order of eschewing the chief-examination of P.W.1, the Plaintiffs have preferred this Revision. The learned Senior Counsel for the Revision Petitioners Mr.M.Balasubramanian, assailed the impugned order contending that the trial Court has not properly appreciated the position; that despite several opportunities to the Defendants, they have not used the same in cross-examining the P.W.1. Contending that the probative value of P.W.1's evidence is to be determined only at a later stage, the learned Senior Counsel has submitted that the trial Court has committed serious error in eschewing the chief-examination of P.W.1. The learned Senior Counsel has further submitted that under no circ
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