Anamika Pranav vs Anil Kumar Choudhary
2023 Latest Caselaw 718 Patna

        IN THE HIGH COURT OF JUDICATURE AT PATNA
       CIVIL MISCELLANEOUS JURISDICTION No.538 of 2018
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Anamika Pranav, daughter of Late Dr. Bhagwan Das Bhagat, wife of Abhishek

Pranav, Resident of Mohalla- Rajendra Nagar, P.S.- Bahadurpur, Town and

District- Patna. ... ... Petitioner/s

Versus

Anil Kumar Choudhary, son of Late Raghunath Prasad Choudhary, resident of

Yogendra Mukherjee Road, P.S.- Town, District- Muzaffarpur.

... ... Respondent/s

====================================================== Appearance :

For the Petitioner/s : Mr. Arjun Kumar, Advocate Mr. Alok Kumar, Advocate For the Respondent/s : Mr. Ranjan Kumar Dubey, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA CAV JUDGMENT Date : 08-02-2023

Heard learned counsel for the parties.

2. The present application has been filed against the order

dated 16.09.2017 passed in Title Suit No. 1482 of 2013 passed

by learned Sub-Judge-VII, Muzaffarpur whereby and

whereunder the learned Trial Court allowed the petition of

plaintiff to expunge the evidence of P.W.-3, Padma Raman

Pathak, who died after his examination-in-chief and part cross-

examination.

3. The facts, in brief, are that the petitioner/plaintiff filed a

suit bearing Suit No. 1482 of 2013 for declaration that the Sale

Deed No. 8233 dated 19.03.2013 is void, fraudulent, illegal, Patna High Court C.Misc. No.538 of 2018 dt.08-02-2023

inoperative and without consideration and has not confer any

title or interest to the defendant/respondent over any part of the

suit property described in Schedule-1 of the plaint.

During the trial the plaintiffs brought on Padma Raman

Pathak (P.W.-3) whose examination-in-chief was filed on

23.05.2017 thereafter the defendant partly cross-examined the

said witness and it was deferred for further cross-examination

but unfortunately the said witness died which was informed to

the Court. The defendant filed a petition dated 11.07.2017 with

a prayer to expunge the evidence of P.W.-3, Padma Raman

Pathak, as his cross-examination could not have been made

complete which was allowed vide the impugned order.

4. Learned counsel for the petitioner has submitted that the

Trial Court has not assigned any reason with regard to allowing

of the petition of defendant for expunging the evidence of

witness P.W.-3. It is further submitted that in the event of death

or serious illness of a witness between his examination-in-chief

and his cross-examination the evidences previously given by

him is admissible though the degree of weight to be attached to

it is of course a question of fact but in the present case the Trial

Court has entirely thrown the evidence of P.W.-3 which is not

permissible.

Patna High Court C.Misc. No.538 of 2018 dt.08-02-2023

5. Learned counsel appearing on behalf of the respondent,

however, supported the impugned order. He has submitted that

unless the witness was cross-examined, the effect of second

proviso of Section 33 of Indian Evidence Act is not applicable

and, therefore, the impugned order was rightly passed as it

relates to expunging of evidence of P.W.-3.

6. The issue involved in this application is whether the

learned Trial Court committed error in expunging the evidence

(examination-in-chief and part cross-examination) of P.W.-3

who died before the completion of his further cross-examination

or the same ought to have been allowed to servive for the

limited purpose of Section 33 of the Evidence Act.

7. In this connection, it would be relevant to quote the

provisions of Section 33 of the Evidence Act, 1872 for ready

reference:

"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 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 Patna High Court C.Misc. No.538 of 2018 dt.08-02-2023

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.

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."

8. Section 33 of the Indian Evidence Act, 1872 deals with the relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated. This section provides that the evidence given by a witness in an earlier judicial proceeding, or before any person authorized by law to take evidence is relevant in a subsequent judicial proceeding or at a later stage of the same judicial proceeding, for the purpose of proving the truth of the facts contained therein, if certain conditions mentioned in the section are satisfied. The death of witness whose evidence is admitted should first to be proved unless it is admitted on the other side.

9. The Hon'ble Supreme Court in V.M. Mathews Vs. S.

Sharma (1995) 6 SCC 122, (AIR 1996 SC 109) held that in

view of the second proviso of Section 33 of the Indian Evidence

Act, evidence of a witness in a previous proceeding would be

admissible under Section 33 of the Act only if the adverse party Patna High Court C.Misc. No.538 of 2018 dt.08-02-2023

in the first proceeding had the right and opportunity to cross-

examine the witness.

10. The words "that the adverse party in the first

proceeding had the right and opportunity to cross-examine"

used in second proviso of Section 33 of the Evidence Act cannot

be stretched to be interpreted to mean "that the adverse party

had actually cross-examined such witness."

Moreover, the second proviso of Section 33 of the

Evidence Act deals with witness cross-examined in "a previous

proceeding" but in the present case in hand, the opportunity to

cross-examine was available in the same proceeding and not

referable to any subsequent proceeding or a later stage in same

proceeding, which may be a case, for example, when ex-parte

decree is vacated and right and/or opportunity to cross-examine

the plaintiff witness may accrue. Hence, the arguments

advanced by the learned counsel for the respondent based on

second proviso to Section 33 of the Evidence Act is not found to

be acceptable.

11. The evidence untested by cross-examination can

have no value but the evidence cannot be rejected as

inadmissible. The correct rule is that the evidence is admissible

but the weight to be attached to such evidence should depend on Patna High Court C.Misc. No.538 of 2018 dt.08-02-2023

the circumstances of each case and that though in some cases

the Court may act upon it, if there is other evidence on record,

its probative value may be very small and may even be

disregarded. The Court should look at the evidence carefully to

see whether there are indications that by a complete cross-

examination the testimony of the witness was likely to be

seriously shaken or his good faith to be successfully impeached.

If the evidence is inadmissible the Court is not entitled to

consider it at all whereas if it admissible the Court must decide

on the circumstances of each case whether any weight should be

attached to it or not.

12. In the judgment by Hon'ble Patna High Court in Mt.

Horil Kuer and another Versus Rajab Ali and others

reported in AIR 1936 Pat 34 (1935 SCC Online Pat 208), this

Court reviewed a number of authorities and was of the opinion

that when a witness died after he had been examined-in-chief

and before his cross-examination had been concluded, his

evidence was admissible, but the degree of weight to be

attached to it depend on the circumstances of the case. Similar

view was also taken by this Court in Srikishun Jhunjhunwalla

Versus Emperor reported in AIR 1946 Pat 384 (1946 SCC

Online Pat. 196) and by Hon'ble Allahabad High Court in Patna High Court C.Misc. No.538 of 2018 dt.08-02-2023

Ahmad Ali Vs. Joti Prasad (AIR 1944 ALL. 188).

The Allahabad High Court in the Ahmad Ali Vs. Joti

Prasad (Supra) held that there is certainly no provision in the

Evidence Act that the evidence of a witness who has been

examined in open Court upon oath shall be excluded because it

has not been possible for the other party to cross-examine him.

13. The Hon'ble Calcutta High Court in Srikumar

Mukherjee Vs. Avijit Mukherjee & Ors. (2015 SCC Online

Cal. 6445) held in Paragraph 12 that "It is, therefore, settled law

that the evidence of a witness, who could not be cross-

examined, cannot be expunged, but the Court shall consider its

evidentiary or probative value alongwith other evidence.

14. The ratio laid down in the above noted judgments

are uniform that the evidence of such witness shall remain on

record and the Court shall consider its probative or evidentiary

value or relevancy alongwith other evidence so available, which

obviously depends upon case to case.

15. In view of the above, the impugned order dated

16.09.2017 passed in Title Suit No. 1482 of 2013 by learned

Sub-Judge-VII, Muzaffarpur, is not sustainable, on account of

expunging the evidence of P.W.-3 from record. The same is

contrary to the principles of law well settled by the Hon'ble Patna High Court C.Misc. No.538 of 2018 dt.08-02-2023

Supreme Court in V.M. Mathew (Supra) and Sashi Jena (Supra).

Hence, the said order is held to be vitiated by jurisdictional

error, which is required to be corrected by this Court in exercise

of superintending jurisdiction of this Court. Accordingly, the

said impunged order dated 16.09.2017 passed by the learned

Sub-Judge-III, Muzaffarpur in T.S. No. 1482 of 2013 is set

aside. Resultantly, the evidence of Padma Raman Pathak (P.W.-

3) is retained on record.

16. As a result, the present application stands allowed.

17. The parties are left to bear their own cost.

18. Before parting, this Court like to state that in spite of

the parties represented by learned counsel, I thought it fit to

request Mr. J.K. Verma, Advocate to assist the Court as Amicus

Curiae. He responded to the call of the Court and assisted the

Court bringing to the notice of the Court a volume of case law

some of which I referred to here-in-above. I place on record my

appreciation of the valuable assistance rendered by Mr. J.K.

Verma, Advocate of this Court.

kamlesh/-                                       (Sunil Dutta Mishra, J)
AFR/NAFR                AFR
CAV DATE                18.01.2023
Uploading Date          08.02.2023
Transmission Date