Single bench dismissed a Civil Revision Petition under Article 227 challenging an order rejecting the marking of a living witness's deposition under Section 33 of the Evidence Act, holding she could be examined directly.
Petitioner is at liberty to confront the deposition of the said person during cross-examination if called as a witness.
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THE HON’BLE SRI JUSTICE RAJA ELANGO CIVIL REVISON PETITION No.78 OF 2012
ORDER:
This Civil Revision Petition is filed under Article 227 of the Constitution of India, challenging the order dated 08.12.2011 passed by the Family Court, S.P.S.R. Nellore District, in I.A.No.1702 of 2011 in F.C.O.P.No.100 of 2009, whereby the trial Court rejected the plea of the petitioner to mark a document, which is the deposition of the daughter of the parties before the same Court in a divorce O.P, on the ground that by invoking the provisions under the Indian Evidence Act, 1872, more particularly Section 33, the deposition by a person, who is alive, cannot be marked as a document in the subsequent proceedings.
Learned counsel for the petitioner submitted that it will be embarrassing situation to the witness, who is none other than the daughter of the petitioner as well as the respondent, as she married now and she cannot be in a position to depose before the same Court regarding the facts deposed by her in the earlier proceedings in the same Court.
Learned counsel for the respondent submitted that the document sought to be marked by the petitioner cannot be marked since there is no provision for marking the same.
Considering the submissions made by the learned counsel on either side, this Court is of the view that there is nothing to interfere with the impugned order passed by the trial Court since the person, who deposed in the earlier proceedings before the same Court, is alive and also capable of giving evidence, and therefore, the deposition of the said person cannot be marked.
The Civil Revision Petition is accordingly dismissed. However, the petitioner is at liberty to confront the deposition of the said person during the course of cross examination, if the said person is called as a witness in the present case and if there is any contradictory statement
by her. Consequently, the stay granted herein shall stand vacated and C.R.P.M.P.No.105 of 2012 shall stand closed. There shall be no order as to costs.
_________________________ JUSTICE RAJA ELANGO Dated: 04.06.2012 va
2 issues framed by the court
Whether a deposition of a living person made in earlier proceedings can be marked as a document under Section 33 of the Indian Evidence Act.
Whether the impugned order rejecting the plea to mark the deposition should be interfered with under Article 227 of the Constitution.
2 provisions across 2 enactments
Petitioner
Respondent
Raja Elango
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
