IMPORTANT POINT
Deposition in another case cannot be treated as cross-examination of deceased witness.

L. Narasimha Reddy, J.— The first respondent filed O.S.No.26 of 2001 in the Court of the I Additional Chief Judge, City Civil Court, Secunderabad against the petitioners and the second respondent for the relief of partition and separate possession of the suit schedule properties against Sri G. Gopala Krishna, the sole defendant.

2. In the course of trial, Gopala Krishna was examined-in-chief as DW1 in the suit and when his cross-examination was halfway through, he died. His wife, the first petitioner and sons, the second petitioner and the second respondent, were brought on record as legal representatives. He filed R.C. No.106 of 2001 before the Principal Rent Controller, Secunderabad against the first respondent for eviction from the property mentioned therein. It is stated that the R.C. was dismissed and an appeal filed against it is pending.

3. The first respondent filed LA.No.296 of 2009 with a prayer to permit him to file the deposition in cross-examination of Gopala Krishna in R.C. No.l06 of200 1, as cross-examination in the present suit. The application was resisted by the petitioners. The trial Court allowed the I.A. through order, dated 7.7.2009. C.R.P.No.3392 of 2009 is filed against the said order.

4. The first respondent filed I.A.Nos.2029, 2030 and 2031 of 2009 with a prayer to receive the cross-examination of Gopala Krishna, to reopen the suit and to recall PW1. The applications were opposed by the petitioners. The trial Court allowed the applications through a common order, dated 30.9.2009. C.R.P.No.4942 of 2009 is filed against the order in I.A.No.2031 of 2009.

5. Smt. D. Pramada, learned counsel for the petitioner, submits that the very prayer in I.A.No.296 of 2009, viz., to make the cross-examination of Gopala Krishna as PW1 in R.C.No.106 of 2001 as cross-examination in the present suit is untenable. She contends that the circumstances provided for under Section 33 of the Indian Evidence Act (for short ‘the Act’) do not exist in the instant case. It is also her case that the cross-examination of Gopala Krishna was not completed, only on account of the lapses on the part of the first respondent.

6. Sri D. Prakash Reddy, learned Senior Counsel appearing for the first respondent, on the other hand, submits that Section 33 of the Act creates a facility for making evidence of a person in one set of proceedings, as part of record in another set, in case the circumstances mentioned therein are proved. He contends that Gopala Krishna died before the conclusion of cross-examination and that itself is sufficient to make his deposition in another case as part of record of this case and that no interference is warranted with the orders under revisions.

7. The suit was filed by the first respondent against his brother, Gopala Krishna. The trial of the suit commenced and the evidence on behalf of the first respondent was completed. The recording of evidence of Gopala Krishna as DW1 was in progress. Though the matter underwent several adjournments, the cross-examination was not completed and in the meanwhile, he died. The first respondent wanted to make the deposition and in particular, the cross-examination of Gopala Krishna as PW1 in R.C.No.106 of 2001 as part of record in the suit. The prayer, however, reads as under:

“Hence, in the interest of justice, equity and fair play, it is therefore prayed that this Hon’ble Court be pleased to receive the cross-examination of PWI in R.C. No. l06 of 2001 on the file of the Principal Rent Controller, Secunderabad, as cross-examination of DW1 in the suit O.S.No.26 of 2001 on the file of the I Additional Chief Judge, City Civil Court, Secunderabad, else the petitioner would suffer great irreparable loss and injury.”

8. From this, it is evident that he wanted the cross-examination of Gopala Krishna in R.C.No.106 of 2001 to be treated as his cross-examination in the present suit. The trial Court allowed the I.A. as prayed for. The other applications are almost formal in nature.

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