V.M. MATHEW versus V.S. SHARMA AND ORS.

V.M. MATHEW versus V.S. SHARMA AND ORS.

The evidence of Kurian is admissible in the present proceeding since the appellant was an adverse party in the first proceeding and had the right and opportunity to cross-examine the witness. The second proviso to Section 33 protects the rights of the adverse party in the first proceeding, and the absence of that right and opportunity is the only bar to admissibility.

Parties
Appellant: V.M. Mathew; Respondent No. 1: V.S. Sharma; Respondent No. 2: Respondent No. 2
Jurisdiction
India
Judgment Date
29 August 1995
Procedural Posture
Civil Appeal / Appeal From Kerala High Court in C.r.p. No. 547 of 1994
Outcome
Appeal allowed; judgment of the High Court reversed.
Legal Topics
Admissibility of Testimony Under Section 33 of the Evidence Act, Interpretation of 'adverse Party', Right and Opportunity to Cross Examine
Evidence Law Succession Law Admissibility of Testimony Under Section 33 of the Evidence Act Interpretation of 'adverse Party' Right and Opportunity to Cross Examine

Case Brief

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Parties

V.M. Mathew

Appellant

V.S. Sharma

Respondent No. 1

Respondent No. 2

Respondent No. 2

Procedural Posture

Civil Appeal / Appeal From Kerala High Court in C.r.p. No. 547 of 1994

Legal Issues

  1. 1 Whether the evidence of a deceased witness (Kurian) in previous proceedings is admissible in subsequent proceedings under Section 33 of the Evidence Act
  2. 2 Interpretation and effect of the expression 'adverse party in the first proceedings having the right and opportunity to cross-examine' under Section 33

Ratio Decidendi

The evidence of Kurian is admissible in the present proceeding since the appellant was an adverse party in the first proceeding and had the right and opportunity to cross-examine the witness. The second proviso to Section 33 protects the rights of the adverse party in the first proceeding, and the absence of that right and opportunity is the only bar to admissibility.

Court Disposition

Appeal allowed; judgment of the High Court reversed.

Orders

  • Order of the trial judge is set aside.
  • Trial judge is directed to mark the evidence of Kurian (P.W.1) from the previous proceedings in the present suit and proceed with the matter in accordance with law.