1. The first respondent filed OS 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 D.W. 1 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 RC 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 RC. was dismissed and an appeal filed against it is pending. The first respondent filed IA No. 296 of 2009 with a prayer to permit him to file the deposition in cross-examination of Gopala Krishna in RC No. 106 of 2001, as cross-examination in the present suit. The application was resisted by the petitioners. The trial Court allowed the IA. through order, dated 7.7.2009. CRP No. 3392 of 2009 is filed against the said order.
3. The first respondent filed IA 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 PW 1. The applications were opposed by the petitioners. The trial Court allowed the applications through a common order, dated 30.9.2009. CRP No. 4942 of 2009 is filed against the order in IA No. 2031 of 2009.
4. Smt. D. Pramada, learned Counsel for the petitioner, submits that the very prayer in IA No. 296 of 2009, viz., to make the cross-examination of Gopala Krishna as PW 1 in RC 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.
5. 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.
6. 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 D.W. 1 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 PW 1 in RC 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 PW 1 in RC No. 106 of 2001 on the file of the Principal Rent Controller, Secunderabad, as cross-examination of D.W. 1 in the suit OS 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.”
7. From this, its evident that he wanted the cross-examination of Gopala Krishna in RC 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.
8. One of the circumstances under which the deposition of a witness in one set of proceedings can be made part of record in another set, is the death of the concerned witness. In the instant case, the witness concerned, namely Gopala Krishna was alive both, when he was examined in chief and till the cross-examination has progressed to a substantial extent All the same, the evidence cannot be treated as complete.
9. The manner, in which the evidence of a witness, who is not alive till the completion of the evidence, must be treated, was examined by several High Courts. There is slight variation of opinions expressed by the High Courts. However, common feature is that such evidence cannot be eschewed as a whole. In Dever Park Builders Pvt. Ltd. v. Smt. Madhuri Jalan, AIR 2002 Cal. 281, the Calcutta High Court discussed the matter in detail, with reference to the precedents on the point. The predominant view is that the evidence of a witness, who expires halfway through, cannot be eschewed altogether. The Madras and the Calcutta High Courts have taken the view that even where a witness is not cross-examined, the evidence cannot be eschewed completely.
10. Subtle distinction needs to be maintained in this regard. Cross-examination of a witness happens to be more important for the reason that the chief-examination is nothing but unverified version of the witness. It is only in the course of cross-examination that necessary information can be elicited and only such part of the evidence, which withstood the cross-examination, that becomes acceptable.
11. If the witness was alive after the examination in chief, but did not offer himself for cross-examination, the entire evidence needs to be eschewed from consideration without any hesitation. If on the other hand, the witness was cross-examined to certain extent, but was not alive thereafter, the evidence need not be ignored altogether. The view expressed by the Madras and Calcutta High Courts that there is nothing in law, which provides for discarding the evidence on the sole ground that the witness was not cross-examined, needs to be accepted. If the party, who was entitled to cross-examine the witness, did not turn up, the chief-examination itself becomes the entire evidence of that witness, for all practical purposes.
12. Viewed from this angle, the evidence of Gopala Krishna as D.W. 1 in the present suit cannot be treated as having been eschewed, though it can be said to be incomplete. Section 33 of the Act certainly gets attracted and the first respondent was very much entitled to make the deposition of mat very witness in another case as part of record in the present suit However, the deposition in another case cannot be treated as cross-examination of the deceased witness. At the most, it can be marked as an exhibit, so that it can be treated as relevant or may be commented upon by both the parties. Therefore, the civil revision petitions are partly allowed modifying the order in IA No. 286 of 2009 as the one for marking the cross-examination of Gopala Krishna in RC No. 106 of 2001 as one of the documents in the suit Once the document is marked, it shall be open to both the parties to place their own interpretation on it. There shall be no order as to costs.
13. The miscellaneous petitions filed in these revisions shall also stand disposed of.
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