Disposed

Abdul Mannan v. Asif Ali

Andhra Pradesh HC13 Feb 2020CRP/1729/2019

Case brief

AI extract

What is this about?

This Criminal Revision Petition challenges a Trial Court order allowing certified copies of depositions from a previous suit to be marked as evidence. The Court held that marking entire prior depositions is impermissible under Section 33 of the Indian Evidence Act when there was no objection raised at the time. Only the specific portions of the prior evidence confronted to the witness during cross

What did the court decide?

Trial Court directed to mark only the specific portion of the statement confronted to the witness, not the entire deposition.

Abdul Mannan Vs Asif Ali — Civil Procedure and Limitation | Andhra Pradesh HC (2020)

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THE HON’BLE SRI JUSTICE C. PRAVEEN KUMAR

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C.R.P. No. 1729 of 2019

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ORDER : ( Per the Hon’ble Sri Justice C.Praveen Kumar)

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Heard Counsel for the Petitioner. Perused the record. In-spite of service of notice on Respondent No. 1 and 2, there is no representation on their behalf. Memo filed under USR No. 52899 of 2019 evidencing proof of service on Respondent No. 1 and 2.

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The present petition came to be filed under Order XIII Rules 3 and 6 of Civil Procedure Code to reject Ex.B1 and Ex.B3, which are the certified copies of depositions in O.S. No. 163 of 2005 and O.S. No.267 of 2003 on the file of the I Additional Junior Civil Judge, Machilipatnam.

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The averments in the affidavit filed by the petitioner/plaintiff show that he filed a suit for permanent injunction restraining the defendant from interfering with his peaceful possession and enjoyment of the plaint schedule property. The plaintiff was examined as PW1 in the main suit. In the cross-examination, he was confronted with some documents to which he admitted and they were marked as “B” series. It is said that, as the Counsel for the plaintiff was engaged in another court, objection could not be taken with regard to admissibility of the said documents. Even the copies of such documents were not furnished by the defendants as required under Civil Rules of Practice. Subsequently, after obtaining copies of

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the deposition, the Counsel for the plaintiff noticed that his deposition in the earlier suit between the respondent/defendants and his brother were marked as Ex.B1 and Ex.B3. Hence, he was advised to file the present petition to reject Ex.B1 and Ex.B2 as they are inadmissible documents and do not comply the requirements under Section 33 of the Indian Evidence Act.

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Counter came to be filed disputing the averments. It is pleaded that, in view of the admission made and has no objection raised at the time of marking, the question of entertaining the present application is unwarranted.

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After hearing both side and considering the material on record, the Trial Court rejected the application. Challenging the same, the present C.R.P. is filed.

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The main ground taken by the learned Counsel for the respondents is that these documents are not admissible in evidence in view of Section 33 of the Indian Evidence Act and hence the evidence of a witness as a whole, given in another case, cannot be marked in this case.

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The question that arises for consideration is, whether the Trial Court was justified in marking the certified copies of deposition as Ex.B1 and Ex.B3?

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It is to be noted that, Ex.B1 is the evidence given by PW1 herein, to whom the contents of the same were confronted, in O.S. No. 163 of 2005. It was a case where the brother of the plaintiff, by

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name, Abdul Bari, filed the suit for partition stating that no partition took place in respect of Ac 1.40 cents of property. The said Suit was dismissed. In the said suit, the plaintiff herein gave evidence as DW1.

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Ex.B1 and Ex.B3 are not placed on record. Normally, it is well settled principle that the entire evidence recorded in one case would not normally be looked into except to the extent to which the suggestions are given by confronting the. Though, time is given, the counsel did not place on record the plaint in O.S. No. 163 of 2005 and Ex. B1 and Ex.B3. However, it is urged that Ex.B1 and Ex.B3 are the certified copies of entire depositions of the plaintiff.

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The fact that, no objection was raised at the time of marking of the documents is not in dispute. The reason now given is that, the counsel for the plaintiff was not available then and without knowing the consequences he kept quiet, which lead to marking of the documents. Later on, the counsel noticed the illegality and filed the application for demarking of the said documents.

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It is to be noted here that, the plaintiff who was examined as PW1 was confronted with the contents of the evidence given by him in another case where he was examined as a witness. The plaint averment reveals that, the plaintiff inherited the property from his father and the defendants are no other than the sons of his brothers. The plaintiff gave evidence in respect of the property that fell to the share of the children of his father Shaik Moulali Saheb. One of the requirements for treating the evidence given in a judicial proceeding

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as a relevant fact is that the questions in issue were substantially the same in the first as in the 2^nd proceeding.

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The above section lays down as to when the evidence of a witness in a previous judicial proceeding is relevant. The section consists of two parts. The main portion of the section lays down the conditions which are required to be satisfied from the previous statement of a witness, in a judicial proceeding, to be admitted in evidence in the later proceeding. The proviso states that the proceedings have to be between the same parties or their representatives in interest.

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It appears from the record that the entire evidence of the plaintiff given in other cases came to be marked as Exs.B1 and B3. The plaint copies of those cases are not placed on record, in spite of given sufficient time.

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Be that as it may, issue somewhat identical came up for consideration in Telanakula Kasi Viswanadham Vs. Pokuri Maruthi

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Prasad¹ , wherein this Court held as under :

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“In view of the above precedential guidance, it is clear that as it is the case of the revision petitioner/respondent in the instant OP that the witness (PW 1) made a statement in his present deposition contrary to certain admissions, which he made in the deposition given by him in the former judicial proceeding, the contrary statements in his said previous deposition can be confronted to him in his cross-examination; and, on such confrontation, if he admits the confronted portions or statements in his previous deposition, such admissions can be recorded by the Trial Court in his present deposition; however, if, on such confrontation, he denies the previous statements in his previous/former deposition, which are contrary to his statements in his present deposition, then the confronted portions only of the previous deposition given in former judicial proceeding can be permitted

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1 AIR 2019 AP 79

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to be marked, but, the entire deposition cannot be permitted to be marked in the instant case, in view of the facts and the legal position obtaining.”

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1. Having regard to the above, this C.R.P. is disposed of holding

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that marking of entire evidence as documents would be bad in law. Following the procedure contemplated under the Code and in terms of the Judgment referred to above, the Trial Court shall mark that portion of the statement which is confronted to the witness.

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Consequently, miscellaneous petitions, if any, pending shall stand closed.

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_______________________________ JUSTICE C. PRAVEEN KUMAR

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Date: 13.02.2020 SM

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THE HON’BLE SRI JUSTICE C. PRAVEEN KUMAR

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C.R.P. No. 1729 of 2019

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Date : 13.02.2020

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SM.

Abdul Mannan v. Asif Ali

Case brief

What is this about?

What did the court decide?

Abdul Mannan v. Asif Ali

Case brief

What is this about?

What did the court decide?

What the court decided

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