IN THE HIGH COURT OF JUDICATURE AT HYDERABD FOR THE STATE OF TELANGANA AND STATE OF ANDHRA PRADESH THURSDAY THE TWENTYFIRST DAY OF AUGUST TWO THOUSAND AND FOURTEEN PRESENT HONOURABLE SRI JUSTICE S. RAVI KUMAR CIVIL REVISION PETITION NO. 2375 OF 2014 Between:
Yerra Maridibabu & Ors. … Petitioners/Defendants V/s.
Busala Pydamma @ Pydithalli … Respondent/Plaintiff Counsel for Petitioners : Sri MSR Subrahmanyam Counsel for Respondent : Sri ASC Bose The court made the following: [order follows] HONOURABLE SRI JUSTICE S. RAVI KUMAR CIVIL REVISION PETITION NO. 2375 OF 2014 O R D E R :
This Civil Revision Petition is preferred against orders dated 01/07/2014 in OS.No. 50 of 2007 on the file of Principal District Judge, Vizianagaram.
2. Brief facts leading to this Civil Revision Petition are as follows:
Respondent herein filed OS.No. 50 of 2007 before Principal District Judge, Vizianagaram for permanent injunction and in that suit at the time of examination DW-3 during cross-examination his earlier deposition recorded in I.A.No. 198 of 1997 in OS.No. 185 of 1996 was confronted and the Court after considering the objection raised on behalf of Revision Petitioners i.e. defendants marked relevant portion of statement in the earlier deposition and questioning the same, present Civil Revision is preferred.
3. Advocate for Revision Petitioners submitted that there is a bar under section 33 of the Indian Evidence Act to mark earlier deposition of a witness when the witness is alive and when the proceedings are not between the same parties. He submitted that trial court erred in marking earlier statement which was confronted to DW-3 during cross-examination.
4. On the other hand, Advocate for respondent/plaintiff submitted that DW-3 was a party in the earlier suit wherein he filed a petition to implead him as a ‘party’ basing on a will and the Court recorded evidence in that application and as there were deviations from his earlier deposition, the same was put to him in the cross- examination and the relevant portion only is marked.
5. Now the point that arises for consideration in this Civil Revision Petition is whether the order of the court below is legal, correct and proper ?
6. As seen from the impugned order already four witnesses were examined on behalf of plaintiff and on defendants side after examining two witnesses DW-3 is examined and during cross- examination he was confronted with his earlier deposition recorded in I.A.No. 198 of 1997 in OS.No. 185 of 1996 for which the witness answered that he does not remember what he stated in his earlier deposition. As that part of statement was relevant and material to decide the issue involved in OS.No. 50 of 2007, the learned trial Judge marked part of statement of earlier deposition. Now the objection of Advocate for defendants is that according to section 33 of Indian Evidence Act, there are certain conditions to confront a witness with his earlier deposition but as seen from the impugned order the very same objection was raised before the learned trial Judge and after considering the decision of this court in TALASILA [1]
SURESH V/s. NAARLA SRINIVASDA CHAKRAVARTHI AND ORS. ,
observed that the deposition of DW-3 can be marked only with reference to that portion of the statement disputed and for marking entire deposition the conditions in section 33 of Indian Evidence Act have to be fulfilled, therefore, on that ground he has over-ruled the objection of the defendants.
7. On a scrutiny of the material, I do not find any wrong in the order of the learned trial Judge and on the other hand, he is right in marking portion of earlier deposition which the witness has denied.
8. For the above reasons, I am of the view that there is no illegality committed by the trial court in marking portion of statement in the earlier deposition of the witness and the Civil Revision Petition is devoid of merits.
9. Accordingly, this Civil Revision Petition is dismissed, at the admission stage. No costs.
10. As a sequel, miscellaneous petition if any, pending in this criminal petition shall stand closed.
JUSTICE S. RAVI KUMAR .
21/08/2014
I s L.
HONOURABLE SRI JUSTICE S. RAVI KUMAR CIVIL REVISION PETITION NO. 2375 OF 2014 Circulation No.46 Date: 21/08/2014 Court Master : I s L Computer No. 43
[1] ) 2013 [4] ALT-192