Smt. Shanti Bai and Others vs Ashok Kumar Billaiya and Others

S.K. Gangele, J.—With the consent of both the parties, matter is finally disposed of. The petitioners-defendants have filed this petition against the order dated 05-04-2011 passed by First Additional Judge to the Court of Additional District Judge, Datia in Civil Suit No. 2-A/2010.

The plaintiffs filed an application u/s 33 of the Evidence Act that the statements of Dharampal, Ram Sujan Singh and Ramesh Kumar recorded in Probate Case No. 23/07 may be taken on record and that may also be considered for the purpose of decision of the case. The Court allowed the application. It is further observed by the Court that the Court shall consider admissibility of the evidence at the time of final hearing.

Section 33 of the Evidence Act prescribes that earlier evidence under certain circumstances is relevant in subsequent proceeding. The said Section reads as under:-

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.

In view of the aforesaid Section, the evidence could be considered if the witness is dead or could not be found. In the present case, the petitioners admitted the fact that one person, namely, Ramesh Kumar is dead, however, the petitioners denied the fact about the death of Dharampal and Ram Sujan Singh. The aforesaid Section itself prescribes that the evidence could be considered in subsequent proceeding under certain circumstances and one of the circumstance is that witness is dead. Hence, from the Section itself, it is clear that the factum of death of witness has to be proved first by invoking provisions of Section 33 of the Evidence Act. The Court has not given any finding in regard to death of two persons, namely, Dharampal and Ram Sujan Singh. Hence, in my opinion, the Court has committed error in jurisdiction invoking u/s 33 of the Evidence Act in regard to evidence of Dharampal and Ram Sujan Singh. However, because the petitioners themselves admitted the factum of death of Ramesh Kumar, hence, the evidence of aforesaid person could be taken into consideration in accordance with law as per provisions of Section 33 of the Evidence Act. Hence, the petition of the petitioners is disposed of with the following directions:-

(I) That, the impugned order dated 05-04-2011 (Annexure P-1) in regard to Ramesh Kumar is upheld.

(II) That, the order in regard to taking statements of Dharampal and Ram Sujan Singh in the Probate Case No. 23/2007 is hereby quashed.

It is hereby clarified that the trial Court is at liberty to invoke provisions of Section 33 of the Evidence Act after taking decision on the question of death of aforesaid two persons, namely Dharampal and Ram Sujan Singh. No order as to costs.