IMPORTANT POINT
Statements of witnesses which were recorded in earlier judicial proceedings, same can be proved in subsequent judicial proceedings.

Paramjeet Singh, J.— Instant civil revision has been filed under Article 227 of the Constitution of India for setting aside the order dated 13.08.2013 (Annexure P6) passed by learned Civil Judge (Jr. Divn.), Ludhiana whereby application filed by the petitioner-plaintiff under Section 33 of the Indian Evidence Act, 1872 (in short “the Act”) seeking permission to tender into evidence the statements of witnesses recorded in earlier suit pending between the same parties.

2. I have heard learned counsel for the parties and perused the record.

3. Learned counsel for the petitioner has contended that statements of Ajit Singh and Jagdev Singh were recorded in another suit where plaintiff and defendant were parties. Since one of witnesses i.e. Ajit Singh is stated to have died on 03.04.2011 and another witness-Jagdev is not traceable, in such circumstances, certified copies of statements of witnesses recorded in earlier suit can be tendered in evidence and same is permissible under Section 33 of the Act which reads as under:

“33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.— Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable;

Provided that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding.

Explanation.—A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.”

4. Therefore, learned counsel prays that his application under Section 33 of the Act be allowed to the extent of permitting petitioner to tender certified copies of statements of only two witnesses i.e. Ajit Singh and Jagdev Singh.

5. Per contra, learned counsel for the respondent has contended that the petitioner is required to prove the concerned documents independently and cannot rely upon the statements recorded in earlier proceedings. The learned counsel has further contended that when only one witness is not traceable and other witnesses are available, then the petitioner can prove his statement by leading evidence of available witnesses. The petitioner cannot be permitted to rely upon the statements of these witnesses made in previous suit without them being cross-examined at this stage, because relief claimed in the present suit is totally different from the relief claimed in earlier suit. If the petitioner is permitted to tender the statements of witnesses examined in the earlier suit, the respondent will loss his valuable right to cross-examine them on the aspects which are peculiar to the present suit.

6. I have considered the rival contentions of learned counsel for the parties.

7. Perusal of Section 33 of the Act makes it clear that if statement of a witness is recorded in the presence of parties in another proceeding, the same can be read in evidence if the witness is dead or cannot be found. The wording of Section 33 of the Act provides that such a statement is relevant evidence for proving the truth in subsequent judicial proceedings. Admittedly, the statements of witnesses namely Ajit Singh and Jagdev Singh were recorded in the judicial proceedings and the same can be proved in subsequent judicial proceedings. So far as the contention of the respondent that his right of cross examination wil