JUDGMENT A.H. Joshi, J.
1. Rule. Rule made returnable forthwith by consent of parties. Heard finally.
2. This is a petition by Original Defendant Nos. 1, and 3 to 6.
3. Defendant Nos. 1 to 6 filed an application (Exh.176) seeking permission for production of certified copies of oral evidence of late Hajrabee widow of Mohammed Samsher recorded in Regular Civil Suit No. 81 of 1982.
4. By application (Exh.177), they prayed for admitting the deposition in evidence. They claimed that earlier Suit No. 81 of 1982 was between the same parties. It is admitted that the decree passed in Regular Civil Suit No. 81 of 1982, was challenged in appeal, and the decree passed in appeal is a subject-matter of Second Appeal. Thus, the judgment and Decree passed in Regular Civil Suit No. 81 of 1982 has yet to reach finality.
5. It is on this ground, the plaintiff and defendant No. 8 have resisted the application of defendant Nos. 1 to 6 at Exh.177.
6. Learned Advocate Shri Bhide placed reliance on reported Judgment of Hon'ble Supreme Court in case of V.M. Mathew v. V.S. Sharma and Ors., .
7. For opposing, Advocate Shri Kaptan, appearing for respondent No. 6, relied upon reported Judgment of Supreme Court in case of Sashi Jena and Ors. v. Khadal Swain and Anr., .
8. According to learned Advocate Shri Bhide, the testimony of witness recorded in earlier proceedings is admissible under Section 33 of the Evidence Act to prove truth of facts stated therein in a subsequent proceeding, or in latter stage of same judicial proceedings, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of way by adverse party, or his presence cannot be obtained without an amount of delay or expense. The proviso to Section 33 prescribes that such evidence can be admitted if the adverse party in the first proceeding had right or opportunity to cross-examine the witness, and that the issue involved is directly and substantially the same, as involved in the first proceeding.
The Judgment relied upon by Advocate Shri Bhide is on the point of definition of the term "adverse party.
The Judgment relied upon by Advocate Shri Kaptan, on the other hand, speaks only about the compliance of all the three conditions required in Section 33 to be (done-made) for placing reliance on testimony referred to in Section 33 of Evidence Act.
9. By the impugned order, the Trial Court has held that depositions of two witnesses sought to be relied upon which are the testimonies recorded in previous suit, namely Regular Civil Suit No. 81 of 1982, are not admissible at the instance of defendant Nos. 1 to 6, since defendant Nos. 1 to 6 were not adverse parties in the previous suit. In fact, objection to production is possible at the behest of the party who was not a party to Regular Civil Suit No. 81 of 1982, or claiming through such party, and had no opportunity or right to cross-examine the witnesses whose testimonies are sought to be relied upon.
10. Be it as it may, however, precluding the party from relying upon the documents sought by him as testimony of a dead person results in denying such party from relying upon evidence, which, if at a later stage, is found admissible, would call for reverting the trial to the stage of production of evidence. This situation is certainly unwelcome in the process of trial. The question of admissibility of evidence and its worth are the matters which can very well be adjudicated as a process of making of the final Judgment by the Court. The decision or a Judgment in favour or against admissibility of document could be part and parcel of the final judgment on which a decree has to be based. A decision on admissibility prior in time, segregates the merits of the case from the stage of hearing of the suit on merits. If such an issue is agitated and kept open for adjudication while considering merits of the case, no prejudice would ensue to the party raising such issue.
11. In this situation, this Court has reached a conclusion that the Judgment and Order impugned passed below Exhs.173 and 177 on 22nd January, 2004 in Regular Civil Suit No. 24 of 1989, deserves to be set aside. However, instead of allowing these applications, it shall suffice if this Court directs that the question as to whether these depositions can be read in evidence, be decided while considering the suit on merits.
12. This Court has observed for the sake of eloquence what it feels about possible effect of "what is meant by adverse party" and circumstances in which such evidence can be relied. Needless to mention that what would govern the issue is the Judgment of the Apex Court, or any other Judgment rendered on merits. Observations of this Court, therefore, be taken as made on what appears prima facie, leaving the issue open for adjudication by the Trial Court.
13. In the result, Rule is made partly absolute by setting aside impugned Order, dated 22nd January, 2004, below Exhs.173 and 177, and keeping open the decision on these applications and question of admissibility of oral evidence of Hajrabee and Abdul Sattar recorded in former suit No. 81 of 1982, to be decided by the Trial Court at the time of final disposal of suit.