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R.BANUMATHI
Kurshid Begum & Others – Appellant
Versus
Amni Jan & Others – Respondent
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 Settleme
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