9911796707
TMI Blog1995 (8) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... Annamma, respondent Nos. 1 and 2 filed L.A.O.P. No. 143 of 1980 in the District Court, Ernakulam under Section 276 of the Indian Succession Act, 1925 for grant of letters of administration in respect of the estate of deceased Annamma and annexed the copy of the will thereto. The appellant had objected to the grant of letters of administration disputing the validity and genuineness of the will and also for failure to implead necessary and proper parties therein. One of the testators, by name Kurian, was examined as P.W.1. Though the trial Court dismissed the application on merits holding that the will was not genuine and also on the ground of non-joinder of the necessary parties, in appeal, the High Court vacated the findings of the Distr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mine the witness. Since the appellant had that right and opportunity, the evidence of Kurian is admissible under Section 33 of the Act. The second proviso requires to be interpreted in that perspective. He has placed reliance on the judgments in Poonamchand v. Motilal and Others (AIR 1955 Rajasthan 179), Makhan Khan s/o Nawazali vs. Emperor (AIR 1948 Sind 122) and also on Sarkar's commentory on the Act (14th Edn.) p. 656. Shri P.S. Poti, learned senior counsel for respondents, on the other hand, contended that what is relevant is that the party against whom the evidence sought to be admitted must be a party in the previous proceeding. He must have had a right and opportunity to cross-examine that witness examined in the earlier proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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. The section lays down as to when the evidence of a witness in a previous judicial proceeding is relevant. It consists of two parts, the main section, and the proviso. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill have the advantage of using the evidence of that witness in a subsequent proceeding between the same parties, while the adverse party in the first proceeding will be deprived of using the same evidence if it is favourable to him. That does not appear to be the intention of the proviso. The adverse party referred in the proviso is the party in the previous proceeding against whom the evidence adduced therein was given against his interest. He had the right and opportunity to cross-examine the witness in the previous proceeding. Take an instance where ex-parte proceedings were taken against the defendant, he had no right and opportunity to cross-examine the witness. If the same evidence is sought to be used, he is certainly an adverse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to him which went against the party producing the witness in the previous proceeding. In Dal Bahadur Singh's case (supra), the Judicial Committee of the Privy Council, while considering the first proviso and the main part of Section 33, held that mere opportunity to cross-examine is not sufficient. There must also be right to do so. In that case, the question of the application of the second proviso was not in issue. Therefore, the ratio therein renders little assitance. The Division Bench of the Rajasthan High Court has, according to us, rightly considered in Poonamchand's case (supra) the effect of the second proviso and held that the adverse party in the previous proceedings would be referable to the party against whom ..... X X X X Extracts X X X X X X X X Extracts X X X X
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