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TMI Blog2019 (5) TMI 795X X X X Extracts X X X X X X X X Extracts X X X X ..... oint of time when the contract was executed and the cheque issued. HELD THAT:- Evidence given by a witness in a judicial proceeding is relevant under Section 33 of the Indian Evidence Act, for the purpose of proving the truth of the facts which it states, provided any one of the following conditions is satisfied; (1) the witness is dead or cannot be found, (2) the witness is incapable of giving evidence, (3) the witness is kept out of the way by the adverse party or (4) the presence of the witness cannot be obtained without an amount of delay or expense - According to the petitioner, the 2nd defendant is kept out of the way by the adverse party. The three conditions laid down in proviso to section 33 are also satisfied, namely, (1) that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an application filed by them, to reopen the evidence on the side of the plaintiff, the plaintiff has come up with the above Civil Revision Petition under Article 227 of the Constitution of India. 2. Heard Mr. Satyanarayana Prasad, learned Senior counsel appearing for the petitioner and Mr. Sunil B. Ganu, learned counsel appearing for the respondents 1, 3 and 4. 3. The 5th respondent is not a necessary party and notice to them was already dispensed with. The 2nd respondent despite being served with notice has not chosen to appear. 4. The petitioner herein filed a civil suit in O.S No.147 of 2007 on the file of the II Additional Chief Judge, City Civil Court, Hyderabad for recovery of a sum o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s DW.1. 7. At that stage, the petitioner/plaintiff filed an application in I.A. No.681 of 2018 for reopening the evidence on their side, for the purpose of marking the certified copy of the deposition of the 2nd defendant in a proceeding under Section 138 of the Negotiable Instruments Act in CC No.636 of 2008. The said application was dismissed by the Commercial Court, forcing the petitioner/plaintiff to come up with the above revision. 8. The background in which the petitioner sought reopening of their evidence was that at the time when the Memorandum of Understanding was entered into between the plaintiff and the 1st defendant, the 2nd defendant was the Managing Director and defendants 3 and 4 were the Dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven in the first instance. But, there was a valid reason as to why he did not do so. At the time when PW.1 was examined, it was not known whether the 2nd defendant would go to the witness box. If he had gone to the witness box, the petitioner would have marked the certified copy of the deposition during cross examination. It is only after the 3rd defendant examined himself as DW.1 that it became clear that the 2nd defendant was not willing to go to the witness box. 11. Therefore, the petitioner lost an opportunity to confront the 2nd defendant in the witness box, with the deposition that he had given in the Criminal Court. Hence, the petitioner had no alternative except to seek reopening of the evidence on their side to mark ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 14. Evidence given by a witness in a judicial proceeding is relevant under Section 33 of the Indian Evidence Act, for the purpose of proving the truth of the facts which it states, provided any one of the following conditions is satisfied; (1) the witness is dead or cannot be found, (2) the witness is incapable of giving evidence, (3) the witness is kept out of the way by the adverse party or (4) the presence of the witness cannot be obtained wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipated that the 2nd defendant would not go to the witness box. If the petitioner had believed that the 2nd defendant being the person, who was the Managing Director of the 1st defendant at the time of entering into the contract, would certainly go to the witness box, they were justified in their belief. Normally, a party to a civil suit would choose to examine a person, who participated in the negotiations at the time of entering into the contract. But, if such a genuine belief on the part of the petitioner/plaintiff had been belied by the 3rd defendant going to the witness box as DW.1 and the 2nd defendant shying away from going to the witness box, the petitioner could have had no alternative except to seek reopening of the evidence to mar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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