The admissibility of a deceased witness's statement and the discretion of the court in ordering relevancy of evidence under Section 33 of the Indian Evidence Act.

1. 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 Defendants 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 Defendants 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 Defendants 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 Plaintiffs 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.1s 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 circums