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PETITIONER: V.M. MATHEW

       Vs.

RESPONDENT: V.S. SHARMA AND OTHERS

DATE OF JUDGMENT29/08/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1996 AIR  109            1995 SCC  (6) 122  JT 1995 (6)   318        1995 SCALE  (5)111

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T K. RAMASWAMY, J. Special leave granted.      This appeal by special leave is filed against the order dated November  16, 1994 of the Division Bench of the Kerala High Court  in CRP  No. 547 of 1994. One V.S. Annama, sister of the  appellant was  alleged to  have executed  a will  on September  15,   1976,  and  said  to  have  bequeathed  her properties to  respondent Nos.1  and 2. The appellant is one of her  brothers. Respondent  No. 1  is the  sister and  the second respondent  is the  son of  the first  respondent. On sudden demise  of Annamma,  respondent Nos.  1 and  2  filed L.A.O.P. No.  143 of  1980 in  the District Court, Ernakulam under Section  276 of  the Indian  Succession Act,  1925 for grant of  letters of administration in respect of the estate of deceased  Annamma  and  annexed  the  copy  of  the  will thereto.      The appellant  had objected  to the grant of letters of administration disputing the validity and genuineness of the will and  also for  failure to  implead necessary and proper parties therein.  One of  the testators, by name Kurian, was examined as  P.W.1. Though  the trial  Court  dismissed  the application on  merits holding that the will was not genuine and also  on the  ground of  non-joinder  of  the  necessary parties, in  appeal, the  High Court vacated the findings of the District  Judge on  the first  point and upheld that the petition was  not maintainable  for non-joinder of necessary parties. Consequently,  it dismissed the appeal. Respondents thereafter filed  another application  being L.A.O.P. No.149 of 1988  for grant  of letters  of administration  which, on caveat being  entered, was  converted into  a suit,  namely, O.S. No.  2 of  1990. The  appellant sought  to rely  on the deposition of  Kurian and  he sought to bring on record that evidence under  Section 33  of the  Indian Evidence Act (for short, ‘the Act’), the reception of which was objected to by

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respondent Nos.  1 and  2 and was upheld by the trial Judge. On revision,  it was  affirmed by the High Court. Hence this appeal pursuant to leave granted by us.      The crux  of the  question raised is the interpretation of the  second proviso to Section 33 of the Act. The learned counsel Shri  T.V.L. Iyer  contended that the High Court was not right  in its  interpretation that  the "adverse  party" referred to in the proviso, must be one like the respondents who had  the right  and  opportunity  to  cross-examine  the witness in  the first proceeding. Respondents having had the right and opportunity to examine Kurian as their witness and since  Kurian   is  dead,   his  evidence  in  the  previous proceeding becomes  relevant evidence  and admissible  under Section 33  of the  Act. What  is relevant is that the party against whom  the evidence  is sought  to  be  used  in  the previous proceeding  must have had the right and opportunity to cross-examine  the witness.  Since the appellant had that right and  opportunity, the evidence of Kurian is admissible under Section  33 of the Act. The second proviso requires to be interpreted  in that  perspective. He has placed reliance on the  judgments in  Poonamchand v. Motilal and Others (AIR 1955 Rajasthan  179), Makhan  Khan s/o  Nawazali vs. Emperor (AIR 1948  Sind 122)  and also on Sarkar’s commentory on the Act (14th Edn.) p. 656.      Shri P.S. Poti, learned senior counsel for respondents, on the  other hand,  contended that what is relevant is that the party  against whom  the evidence  sought to be admitted must be a party in the previous proceeding. He must have had a  right  and  opportunity  to  cross-examine  that  witness examined in  the earlier  proceeding. Since  the respondents had no  right and  opportunity to  cross-examine Kurian, his evidence under  Section 33  of the Act is not admissible. In support thereof,  he has placed reliance on the decisions in Dal Bahadur  Singh and  others Vs.  Bijai Bahadur  Singh and Others, (AIR  1930 PC  79), Sundara Rajali Vs. Gopala Thevan and Another  (AIR 1934 Madras 100) and Brajaballav Ghose and Another Vs.  Akhoy Begdi  and Others (AIR 1926 Cal. 705). He also  contended  on  merits  regarding  the  effect  of  the evidence of Kurian in these proceedings.      We make  it clear  that  in  this  appeal  we  are  not concerned with the effect of the evidence of Kurian examined in the previous proceeding. The only question is whether the evidence of Kurian is relevant and admissible in the present proceeding and  whether interpretation  given by  the Kerala High Court  is correct  interpretation of the second proviso to Section 33 of the Act. Section 33 of the Act reads thus :      "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      authorised  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 -

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    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."      The section  lays down  as to  when the  evidence of  a witness in  a previous  judicial proceeding  is relevant. It consists of  two parts,  the main  section, and the proviso. The main section lays down the conditions which are required to be satisfied for the previous statement of a witness in a judicial proceeding  to be admitted in evidence in the later proceeding.  Admittedly,   since  Kurian  died  pending  the proceeding, the  requirement of  the main part of Section 33 stands satisfied.  The only  question is  what would  be the effect of  the words  "adverse party in the first proceeding having the  right and  opportunity  to  cross-examine".  The question of  a party  having the  right and  opportunity  to cross-examine will  arise, if  he is an adverse party in the first proceeding.  The second proviso, which is an exception to the  main part  of the  section,  operates  only  if  the adverse party in the first proceeding did not have the right and  opportunity   to  cross-examine  the  witness  examined therein. The  term ‘adverse  party’ connotes  that  a  party which has  a right  and opportunity  to cross examine in the first  proceeding.   This  proviso,   therefore,   obviously protects the  rights of  the  adverse  party  in  the  first proceeding and  not the  party who produced the witness. The party against  whom the  witness is produced in the previous proceeding is  the adverse  party and  not  the  person  who produced  the  witness  and  had  the  advantage  of  having examined the  witness. If the interpretation which is sought to be  put up  by the learned counsel for the respondents is accepted, as  has been done by the High Court, it would mean that  the   person  producing   the  witness  in  the  first proceeding will  have the advantage of using the evidence of that witness  in a  subsequent proceeding  between the  same parties, while  the adverse  party in  the first  proceeding will be  deprived of  using  the  same  evidence  if  it  is favourable to  him. That does not appear to be the intention of the proviso.      The adverse  party referred in the proviso is the party in the previous proceeding against whom the evidence adduced therein was given against his interest. He had the right and opportunity to  cross-examine the  witness in  the  previous proceeding. Take an instance where ex-parte proceedings were taken against the defendant, he had no right and opportunity to cross-examine the witness. If the same evidence is sought to be used, he is certainly an adverse party in the previous proceeding and  since he  had no  right and  opportunity  to cross-examine that witness, the same evidence cannot be used against the defendant in the subsequent proceeding. In other words, the proviso lays down the acid test that statement of a particular witness should have been tested by both parties by examination  and cross-examination  in order  to make  it admissible in  the later  proceeding. Thereby  it  seeks  to protect the  rights against  whom  the  previous  proceeding

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might have gone ex-parte who had no right and opportunity to cross-examine the  witness. For  the same  reason, it  would also protect  the co-plaintiffs  and co-defendants  who  may have a right but no opportunity to cross-examine the witness since it  was produced  by one  of the  co-plaintiffs or co- defendants on  their side  but that  evidence  went  against their interest.  It is,  therefore, clear  that a person who examined  the  witness  should  not  be  permitted,  in  the subsequent proceeding between the same parties, to raise the objection that  the statement  which  was  recorded  in  the previous proceeding  on his  behalf should not be admissible because he  had no  right and  opportunity to  cross-examine him. It  would also  be unfair  that the  person producing a witness in the previous proceeding should be able to utilise the  evidence   recorded  in  his  favour  in  the  previous proceeding as  evidence in  the subsequent proceeding, while the adverse  party should  be denied  of the  same right  of using the  same statements  favourable  to  him  which  went against the  party producing  the witness  in  the  previous proceeding.      In Dal  Bahadur  Singh’s  case  (supra),  the  Judicial Committee of  the Privy Council, while considering the first proviso and  the main  part of  Section 33,  held that  mere opportunity to  cross-examine is  not sufficient. There must also be  right to  do so.  In that case, the question of the application  of   the  second  proviso  was  not  in  issue. Therefore, the ratio therein renders little assitance.      The Division  Bench of  the Rajasthan  High Court  has, according to  us, rightly  considered in  Poonamchand’s case (supra) the  effect of  the second proviso and held that the adverse party in the previous proceedings would be referable to the  party against  whom the evidence was adduced and had right and  opportunity to cross-examine the witness, and did cross-examine  the   witness.  The  Division  Bench  of  the Calcutta High  Court and the Single Judge of the Madras High Court have  not considered  the effect of the second proviso in proper  perspective in  the above  noted cases. Sarkar on Evidence (14th  Edn.) at page 656 states in this behalf that "adverse  party   in  the   first  proceeding   is  used  to distinguish  that  party  from  "the  party  who  calls  the witness". A  party calling  a witness  does  not  become  an "adverse party"  because that  witness’s evidence is hostile to him.  The proviso  obviously protects  the right  of  the "adverse party in the first proceeding" and not the right of the person who produces and examines the witness.      We, therefore,  hold that  the appellant  is an adverse party in  the first  proceeding and  he had  the  right  and opportunity to  cross-examine Kurian  who  was  examined  as P.W.1 in the previous proceeding by the respondents; and the evidence  becomes   admissible  since  Kurian  died  pending proceeding. Its  acceptability is  a matter to be considered by the trial court but at this stage it is not proper for us to go into that aspect of the matter.      The appeal  is accordingly allowed. The judgment of the High Court  is reversed  and the order of the trial Judge is set aside.  The trial Judge is directed to mark the evidence of Kurian  examined in  the previous  proceeding as P.W.1 on behalf of  the appellant  and proceed  with  the  matter  in accordance with law. No costs.