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Jainab Bibi Saheba v. Hyderally Saheb
Structured Summary of the Provided Opinion
Factual and Procedural Background
The bulk of the evidence in the present suit had been recorded in a previous judicial proceeding between the same parties in which the same main issues were raised. The lower Court admitted that prior evidence by the consent of the parties. An objection was taken at a later stage that such evidence was inadmissible. Because the decisions in earlier cases were conflicting on this point (notably Ponnusami Pillai v. Singaram Pillai, Prakasarayanim Garu v. Venkata Rao and Krishna Reddi v. Sundara Reddi), the question whether evidence taken in a prior judicial proceeding is admissible in a later proceeding by consent was referred to a Full Bench for decision.
Legal Issues Presented
- Whether evidence given by a witness in a former judicial proceeding between the same parties and on the same issues is admissible in a subsequent judicial proceeding when admitted by the consent of the parties.
- Whether the ruling in Ponnusami Pillai v. Singaram Pillai (which held that consent cannot render such prior evidence admissible) should be maintained or overruled in light of Sections 33 and 165 of the Evidence Act and the competing authorities.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ponnusami Pillai v. Singaram Pillai | Held that consent of parties could not make admissible evidence given in a prior judicial proceeding where some issues were the same; decision rests mainly on a construction of Sections 165 and 33 of the Evidence Act. | The Full Bench examined and overruled this decision on the point referred; the Court concluded that the view in Ponnusami Pillai is contrary to principle and practice and must be overruled. |
| Prakasarayanim Garu v. Venkata Rao | Recognized circumstances in which evidence taken earlier may be used (e.g., transfer of suit or change of judge) and supported the admittance of prior evidence in certain situations. | Relied upon as correctly decided and as authority favouring admission of prior evidence by consent; the Court viewed it as rightly decided and consistent with principle. |
| Krishna Reddi v. Sundara Reddi | Characterised the issue as one of mode of proof (not relevancy of facts themselves) and treated prior depositions as a recognized exception for proving relevant facts. | The Full Bench adopted this approach: the matter is one of mode of proof and a party can waive protections intended for his benefit in a civil suit, allowing prior evidence by consent. |
| Williams v. Williams | Cited as authority in support of the statement of Chancery practice that evidence taken in another court may be read if parties and issues are the same. | Used to show that English practice allowed reading of prior evidence in analogous situations and to anchor the argument that consent-based admission had established practice in England. |
| Conradi v. Conradi | Illustrated that a new trial had been conditioned upon admission of Judge's notes of prior deposition, implying consent can render such material admissible. | Served as an example that English practice treated consent as sufficient to admit prior trial material; cited to support admission by consent. |
| Ramaya v. Devappa Ganpaya | Sir Lawrence Jenkins observed that parties may agree that evidence in one suit shall be treated as evidence in another; such agreement does not affect court's jurisdiction. | Cited as high authority supporting the proposition that parties can agree on the mode of taking evidence and that consent may permit use of materials otherwise inadmissible without consent. |
| Angammal v. Aslami Sahib | Referred to as a ruling of the Court consistent with the view that admission by consent is permissible. | Relied upon to show precedent within the Court's own decisions consistent with admitting prior evidence by consent. |
| Lakshman Govind v. Amrit Gopal | Authority for the proposition that where evidence was admitted and acted upon by the trial judge without objection, appellate courts should not permit an objection to the procedure. | Applied to hold that when prior evidence is admitted and acted upon at trial without objection, the appellate court should not permit a belated objection to the method of proof. |
Court's Reasoning and Analysis
The Full Bench considered statutory text, established practice and prior decisions. The reasoning can be summarised in the following steps, following the structure and statements in the opinion:
- Identification of the legal question: whether evidence recorded in a previous proceeding between the same parties on the same issues is admissible in a later proceeding if admitted by the parties' consent.
- Analysis of Section 165 of the Evidence Act: The Court noted that S.165 permits the presiding Judge to ask questions about any fact, relevant or irrelevant, and observed that the proviso to S.165 only requires that the Judge's judgment be based on facts declared relevant and duly proved. The Court held that this proviso does not determine what facts are "duly proved" nor does it prohibit parties from consenting to a mode of proof.
- Analysis of Section 33 of the Evidence Act: Section 33 makes evidence given in a judicial proceeding relevant for proving the truth of facts in a subsequent proceeding in the circumstances specified in the section. The Court observed that S.33 creates statutory exceptions (subject to restrictions) allowing prior evidence in specified circumstances and that its operation is distinct from the question whether consent can be used to admit prior evidence.
- Distinction between relevancy of facts and mode of proof: Citing Krishna Reddi v. Sundara Reddi, the Court emphasised that the question is one of mode of proof (how relevant facts are proven), not whether the facts themselves are relevant. The primary rule is viva voce examination, but recognised exceptions exist (affidavits, commission, evidence taken by another judge, Section 33 situations), and receiving prior depositions is one such exception in practice.
- Role of consent and practice: The Court pointed to established practice in England and India where parties consent to use evidence taken in other proceedings (or where a judge's notes are read) and to rules and orders (e.g., O.37 R.3 and its saving clauses) permitting non-viva-voce methods by consent. The Court treated the prevalence and convenience of this practice as weighty reasons for permitting admission by consent, absent strong grounds to the contrary.
- Evaluation of prior conflicting decisions: The Court examined Ponnusami Pillai v. Singaram Pillai (which disallowed admission by consent) and found it unsupportable in light of the statutory scheme, practice and other authorities (including Prakasarayanim Garu v. Venkata Rao and Ramaya v. Devappa Ganpaya). The Court concluded that Ponnusami Pillai should be overruled.
- Safeguards and limits: The Court recognised the protective purpose of Section 33's restrictions (e.g., guarding a party's right to cross-examination) but held that in civil suits a party may waive those protections. The Court noted a possible differing position in criminal trials but confined its holding to civil proceedings and inter partes matters.
- Appellate estoppel: The Court relied on authority to hold that where evidence was admitted and acted upon by the trial Judge without objection, appellate courts should not permit a party to raise an objection to the procedure on appeal.
- Conclusion: On the combined view of statute, practice and precedent, the Full Bench answered the reference in the affirmative and overruled the contrary authority in Ponnusami Pillai v. Singaram Pillai.
Holding and Implications
Holding: The Full Bench answered the reference in the affirmative and held that prior evidence taken in a former judicial proceeding between the same parties, raising the same issues, may be admitted in a subsequent civil proceeding by the consent of the parties; accordingly, Ponnusami Pillai v. Singaram Pillai is overruled on this point.
Implications (as stated in the opinion)
- Direct effect on the parties: Parties in civil suits may, by consent, permit the use of evidence taken in prior proceedings between the same parties on the same issues as evidence in the later proceeding. If such evidence has been admitted and acted upon by the trial Judge without objection, a party cannot later take objection to that procedure on appeal.
- Precedential effect: The Full Bench expressly overruled the earlier contrary authority in Ponnusami Pillai v. Singaram Pillai, aligning the law with existing practice and other decisions favouring admission by consent (for civil matters).
- Limits acknowledged by the Court: The decision is rooted in civil, inter partes practice and the Court recognised the protective function of S.33; the Court left open differing considerations that may apply in criminal trials (the opinion distinguishes civil suits from potential criminal-law concerns).
Answer recorded in the opinion: "Answer in the affirmative." (The Full Bench overruled the contrary decision and pronounced the law as summarized above.)
Oldfield and Krishnan, JJ.:— The greater part of the evidence in this case was taken in a previous judicial proceeding to which the same persons were parties and in which the same main issues were raised. That evidence was admitted by the lower Court by consent the first point taken here is that it was inadmissible. Authority on the question is conflicting in Ponnusami Pillai v. Singaram Pillai(1), Prakasarayanim Garu v. Venkata Rao(2) and Krishna Reddi v. Sundara Reddi(3). We therefore refer to a Full Bench the question whether such evidence is admissible.
OPINION
Wallis, C.J:— The decision in Ponnusami Pillai v. Singaram Pillai, that the consent of the parties to a suit cannot make admissible the evidence given in a previous judicial proceeding between the same patties where some of the issues were the same, was based mainly on the provisions of Sections 165 and 33 of the Evidence Act. S. 165, which enables the presiding Judge to ask any question “about any fact relevant or irrelevant,” contains a proviso
“that the judgment must be based on facts declared by this Act to be relevant and duly proved.”
2. The effect of this section merely is that, while the presiding Judge in the course of the trial may ask questions about irrelevant facts, including under the schame of the Act statements made to the witness by other parties or hearsay, he must base his judgment upon facts which are relevant to the issues and are duly proved. It does not throw any light on the question, what facts should be considered to be duly proved. S. 33, which occurs under the heading “statements by persons who cannot be called as witnesses,” provides that
“evidence given by a witness in a judicial proceeding is relevant for the purpose of proving in a subsequent judicial proceeding the truth of the facts which it states”
3. In the circumstances set out in the rest of the section. As pointed out in Amir Ali and Woodroffe's Commentaries, the word “relevant,” as used in the Act, is equivalent to “having probative force” and the effect of the section is to make the evidence admissible in the circumstances specified independently of the consent of the parties. Though differently worded, this section has really much the same effect as O. 37, R. 3 of the Rules of the Supreme Court, which enables the Court to order evidence taken in another case to be read. This is in accordance with the old Chancery practice, which is stated as follows in Daniel's Chancery Practice, Ch. 12, S. 2(1), p. 515:
“Evidence taken in another Court may be read in a cause on production of a copy of the pleadings if the two suits are between the same parties or their privies, and the issue is the same; and such depositions are admissible in evidence in the former cause,”
4. Citing Williams v. Williams(4). Such orders are only made in cases similar to those specified in S. 33, but if the Court could make such depositions admissible even without the consent of parties, the case for admitting them by consent is even stronger. Rr. 1 and 18, O. 37, which require the examination of the witnesses to be viva voce in open Court except in cases where proof is to be made by affidavit or evidence taken on commission to be admitted, and provide that these two modes of proof shall not be adopted except in the cases specified, both contain a saving clause enabling it to be done in any case by the consent of parties.
5. This is a recognition of the principle that such matters may properly be regulated by the consent of the parties. The admission by consent of evidence taken in other cases raising the same issues is of daily occurrence in England and must now be taken to be the settled practice, which is the law of the Court. If there is not much direct authority on the point, that would appear to be because it had never been seriously questioned. In Conradi v. Conradi(5), a divorce suit in which a new trial had been ordered, the question arose whether according to the practice of that Court the Judge's notes of the deposition of a witness at the earlier trial who had since died could be read at the second trial except by consent. Lord Penzance, who had been a Common law Judge, observed that he had known of its having been made a condition of granting a new trial that the Judge's notes of the previous trial should be admitted. No such order could have been made except on the footing that the consent of the parties could render the evidence admissible.
6. There is, in my opinion, no sufficient reason for holding that a different rule is applicable in India where the practice in cases such as the present is scarcely less well established than in England, and is I of such obvious convenience that very strong grounds should be shown for holding it inadmissible. The Evidence Act, it is true, contains no express recognition of the practice, but neither, so far as I can see, is any such express recognition to be found in Taylor on Evidence. The Indian statute and the English treatise both confine themselves to stating the well-established rules of evidence, and do not deal with the question how far the strict requirements of the established rules may be departed from by consent in cases such as this. Far from the practice being opposed to public policy, evidence not taken before the Judge actually deciding the case has been made admissible in India by statute, as pointed out by Sundara Ayyar, J., in Prakasarayanim Garu v. Venkata Rao, in cases where a suit is transferred from one Court to another and where there is a change of Judge in the trying Court owing to death, transfer or other cause. In these circumstances the practice seems to be in accordance with the principle combined in the maxim unusquisque potest re nuntiare juri prose introduoto, seeing that it is not only not opposed to public policy but entirely in accordance with it. The trend of the Indian decisions which are referred to by Sundara Ayyar, J., is also in its favour and the judgment of Sir Lawrence Jenkins, C.J, in Ramaya v. Devappg Ganpaya (6) is to the same effect. Ponnusami Pillai v. Singaram Pillai must be overruled at the question answered in the affirmative.
Coutts-Trotter, J.:— It is clear that in this country neither an omission by the advocate to object to the giving of irrelevant and inadmissible evidence nor the failure of the tribunal to exclude it of its own motion will validate a decree based on material which the Evidence Act declares to be inherently and in substance irrelevant to the issue. A wholly different question arises, where the objection is not as to the nature and quality of the evidence in itself but merely as to the mode of proof put forward. I agree that consent can cure what would otherwise be a defective method of putting forward evidence in its substance and context relevant and germane to the issues; and that to hold otherwise would not only be contrary to the established practice both in England and in this country but would prohibit litigants from adopting a method leading to the saving of time and expense and in itself neither inconvenient nor unjust. I am of opinion that Prakasarayanim Garu v. Venkata Rao was rightly decided and that Pounusamy Pillai v. Singaram Pillai is contrary both to principle and practice.
Krishnan, J.:— This reference raises the question of the correctness of the ruling in Ponnuswamy Pillai v. Singaram Pillai. The learned Judges who decided that case held, on a construction of Sections 33 and 165 of the Evidence Act, that in spite of the consent of parties the evidence given by a witness in a former proceeding was not admissible in a later proceeding between the same parties unless the
“conditions prescribed by Section 33 of the Evidence Act, were found by the trial Judge to exist.”
7. In arriving at this conclusion they expressly declined to follow an earlier ruling of this Court in Prakasarayanim Garu v. Venkata Rao. With all respect to the learned Judges it seems to me that their view cannot be supported.
8. As pointed out in Krishna Reddi v. Sundara Reddi the question involved here is one of mode of proof of relevant facts rather than one of the relevancy of the facts themselves. The former depositions were sought to be admitted as proof of facts relevant to the present case spoken to by the witnesses then. The primary rule to prove relevant facts by the evidence of witnesses is to call them before the trial Judge and examine them viva voce in the manner stated in Ch. 10, Evidence Act. But that rule has several recognized exceptions, such as the examination of witnesses on commission, or the use of affidavit as evidence, the use of evidence taken by one Judge by another as in cases where a suit is transferred from one Court to another or when there is a change of Judge in the trying Court. One of such exceptions recognized by law is the method of filing the record of evidence of a witness taken in a former judicial proceeding. This is allowed by Section 33 of the Evidence Act subject, no doubt, to certain restrictions and conditions. These limitations seem from their nature to be intended to protect the opposing party from being prejudiced by such admission; as it may interfere with his right of cross-examination and of testing the credibility of the witness. I quite agree that if such evidence is to be admitted against the opposition of a party, the Judge should be satisfied that the conditions and restrictions imposed by S. 33 are fully complied with; but I can see no difficulty in holding that a party may waive the benefit of those provisions which are intended for his benefit, at any rate in a civil suit where no question of public policy is involved, whatever the position may be in a criminal trial. A civil suit is a proceeding inter partes and as parties can by consent settle its final result by having a consent decree passed, there is no reason why they should not be permitted to consent to treat something as evidence of a relevant fact which it may not otherwise be; and when the trial Judge has admitted and acted upon such evidence, it is not only proper evidence but the parties ought not to be allowed to object to its admissibility in appeal.
9. This view is in accordance with the rulings of our Court in Angammal v. Aslami Sahib(7) and Krishna Reddi v. Sundara Reddi, and it has also the high authority of Sir Lawrence Jenkins in its favour in Ramaya v. Devappa Ganpaya. That learned Judge says;
“parties, if so minded, may ordinarily agree that evidence shall be taken in a particular way, and it is common experience that parties do agree that evidence in one suit shall be treated as evidence in another. That is not a matter which ctn be said to affect the jurisdiction of the Court. It is merely that parties allow certain materials to be used as evidence which apart from their consent cannot be so used.”
10. It is also in accordance with the established practice both here and England, and we should not lightly depart from such practice as it tends to the saving of time and expense. Again, where such evidence has been admitted and acted upon by the trying Judge without objection, it is clear from Lakshman Govind v. Amrit Gopal(8) and the authorities cited in it that the appellate Court should not allow any objection to be taken to the procedure.
11. The learned Judges in the 41 Madras case consider that what they call the “stringent provisions” of Section 165 of the Evidence Act, that is, the first proviso in it, prevent the views above stated from being taken. I agree with the learned Chief Justice that section has really no bearing on the question before us.
12. The section is enacted to enable the presiding Judge to ask any question he pleases, whether relevant or irrelevant, and to order the production of any document or thing which he wishes to have. The provision relied on in Ponnusami Pillai v. Singaram Pillai is the proviso to that section; and as such it has no general application but merely prohibits the Judge from basing his judgment on the facts so obtained by him unless they are relevant and duly proved. It comes into operation only when the Judge has acted under the section. I therefore agree that our answer to the reference must be in the affirmative and that the case in Ponnusami Pillai v. Singaram Pillai must be overruled.
S.N/R.K
13. Answer in the affirmative.
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