S.B. CIVIL WRIT PETITION NO.7017/2003. LRs of Narain Singh Vs. LRs of Smt.Bhagwati Devi & Ors. Date of Order :: 30th June 2008 HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. R.R.Nagori, for the petitioners. Mr. B.K.Thanvi, for the respondents. .... BY THE COURT: This writ petition is directed against the order dated 23.05.2003 as passed by the Additional Civil Judge (Junior Division) No.6, Jodhpur in Civil Original Suit No.460/1995 (Old No.16/1982) rejecting an application moved by the plaintiffs- petitioners under Section 33 of the Evidence Act. Briefly, the facts and the relevant aspects of the proceedings could be noticed in their chronology thus: Bhagwati Devi (defendant in the present suit - since deceased and represented by her legal representatives - respondents Nos.1/1 to 1/9) filed a suit (CO No. 483/1974) for recovery of arrears of rent and ejectment against Narain Singh (plaintiff in the present suit – since deceased and represented by his legal representatives - petitioners Nos.1 to 10) with the submissions 1 that Narain Singh had taken the premises in question on rent on 06.10.1972 while executing a rent note to that effect; and had defaulted in payment of rent. Narain Singh, the defendant in the said suit, denied existence of relationship of landlord and tenant between the parties and asserted that he was the owner of the suit property with further submissions that while taking a loan in the sum of Rs.10,000/-, though he executed a sale deed in favour of the creditor Damodar Lal, but the transaction had been of a mortgage; that the said Damodar Lal filed a suit for ejectment wherein the matter was settled in the fashion that Damodar Lal was paid Rs. 11,000/- by Bhagwati Devi, wife of the brother of Narain Singh, and it was also agreed between Bhagwati Devi and Narain Singh that interest on the payable amount shall be adjusted towards the rent and that within ten years, after settling the accounts, Bhagwati Devi would execute a document in his favour. Narain Singh, thus, asserted that the plaintiff Bhagwati Devi was only a creditor mortgagee and not the owner of the suit property. In the said suit, an issue was framed on the basic question as to whether there existed a relationship of landlord and tenant between the parties. The learned Trial Court examined the evidence of the parties and did not accept the case of the defendant about the transaction with Damodar Lal and then with Bhagwati Devi 2 being of mortgage. In the said suit, the defendant Narain Singh examined himself as DW-1 and produced other witnesses including DW-2 Kishori Lal Mathur, DW-5 Madan Raj and DW-6 Madho Singh. The learned Trial Court, after rejecting the case of Narain Singh, held him to be the tenant and found him defaulter in payment of rent and, accordingly, decreed the said suit on 14.01.1982. Thereafter, Narain Singh filed the present suit against Bhagwati Devi seeking the relief of redemption of mortgage and recovery of excess amount paid and asserted that true nature of transaction had been of mortgage; himself being the mortgagor and Bhagwati Devi being the mortgagee. During pendency of this suit, the plaintiff Narain Singh expired and his legal representatives have been substituted as plaintiffs. In the present suit, the defendant Bhagwati Devi in her written statement has denied the plaint averments while maintaining that the plaintiff Narain Singh sold the property to Damodar Lal on 31.10.1968 and thereafter the same was purchased by her from Damodar Lal on 15.09.1971. The defendant Bhagwati Devi has also pointed out the fact that she filed the suit aforesaid bearing No.483/1974 that was decreed on 14.01.1982 and therein, Narain Singh was found to be her tenant. 3 An objection was also taken in the written statement filed in this suit that Damodar Lal was a necessary party; and in the wake of such objection about Damodar Lal, the plaintiff Narain Singh moved an application to have him impleaded as a defendant but the said application came to be rejected by the learned Trial Court on 23.11.1992. A revision petition was preferred by the plaintiff, being S.B. Civil Revision Petition No.23/1993 that was allowed by this Court on 18.05.1995 particularly with the observations that when it had been the objection of the defendant herself that Damodar Lal was a necessary party to this suit; and when the plaintiff moved for impleadment of Damodar Lal to meet out such objection, the learned Trial Court was not justified in rejecting his application. While allowing the application, this Court made it clear that the order was only in relation to impleadment and nothing further; and it was left for the defendant to raise all such pleas as may be permissible in law and the Trial Court was directed to proceed expeditiously with the matter. It has been pointed out in this writ petition that the said Shri Damodar Lal has been served in the suit but has chosen not to file any written statement. Issues in this suit were framed on 02.12.1989; and issue No.1 has been framed on the question as to whether plaintiff Narain Singh mortgaged the suit house with the defendant No.1 Bhagwati Devi ? 4 The application under Section 33 of the Evidence Act came to be moved by the plaintiffs-petitioners in this suit on 01.11.2002 and, with reference to the previous suit bearing No.483/1974, it was pointed out that Narain Singh, Kishorilal, Madanraj and Madho Singh were examined as witnesses in the said suit that was tried between the same parties. It was stated that the plaintiff Narain Singh and the aforesaid witnesses have since expired but they were cross-examined in the previous suit regarding the transaction in question relating to the same property and their statements were relevant for the questions involved in the present suit; and, because they cannot be produced for having expired, their statements as recorded in the previous suit may be taken on record. The learned Trial Court, by its impugned order dated 23.05.2003, has proceeded to reject the application so moved by the plaintiffs-petitioners essentially on two counts: one, that the third proviso to Section 33 of the Evidence Act is not satisfied because issues in the present suit and the former suit are not substantially the same and the two suits were different in scope inasmuch as the question of mortgage could not have been decided in the former suit and the question of tenancy cannot be decided in the present suit; and second, that in the present suit, Damodar Lal is a necessary party but he was not a party in the former suit and he cannot be said to be the 5 representative in interest of the former parties and, therefore, the ingredients necessary for application of first proviso to Section 33 are also missing. It may be pointed out that the order dated 23.05.2003 was earlier challenged by the plaintiffs-petitioners in S.B.Civil Revision No.1007/2003 wherein notices were issued for final disposal on 10.09.2003 and further proceedings in the suit were stayed; however, in view of amendment to the Code of Civil Procedure and the law declared by the Hon'ble Supreme Court in Shiv Shakti Cooperative Housing Society, Nagpur Vs. Swaraj Developers and others: (2003) 6 SCC 659, the impugned one being an interlocutory order, was held not revisable under Section 115 CPC and hence, the revision petition was dismissed on 21.10.2003. The petitioners thereafter filed this writ petition on 21.11.2003 wherein notices were issued on 19.01.2004 and further proceedings in the suit were again ordered to be stayed. The writ petition was admitted for final hearing on 14.11.2005. Assailing the order aforesaid, learned counsel for the petitioners has referred to Section 33 of the Evidence Act and submitted that the Trial Court has proceeded on irrelevant considerations and has rather misdirected itself. According to the learned counsel, in the present suit, Damodar Lal was impleaded as party only on the objection raised by Bhagwati 6 Devi but no relief has been claimed against him and he has not even filed the written statement. Learned counsel submitted that merely because Damodar Lal was not a party to the former suit, the first proviso to Section 33 of the Evidence Act is not removed out of application. Learned counsel further submitted that so far the third proviso to Section 33 is concerned, framing of issues in the two suits is not relevant; and from out of the pleadings of the parties, it is clearly made out that Bhagwati Devi plaintiff in the former suit claimed ejectment on the basis of rent note and Narain Singh contested the said suit on the allegations that the real transaction had been that of mortgage and adduced evidence in that regard. Thus, according to the learned counsel, the question in issue in the present suit that real transaction had been of mortgage was very much involved in the former suit. Learned counsel has referred to the decisions as were cited before the learned Trial Court including the one in the case of Krishnayya Surya Rao Bahadur Garu and Another Vs. Vekata Kumara Mahipathi Surya Rao Bahadur Garu: AIR 1933 Privy Council 202. Per contra, learned counsel for the defendants- respondents contended that the learned Trial Court has passed the impugned order in accordance with law and the order does not suffer from any jurisdictional error. Learned counsel submitted that a look at the pleadings of the parties in 7 the former suit and the present suit makes it clear that the previous proceeding and the present suit are not between the same parties; that in the ejectment suit, nobody could have represented Damodar Lal who was not even a party thereto; and that Bhagwati Devi cannot be said to be the representative in interest of Damodar Lal. It has also been urged that the submission of the petitioners that they are not seeking any relief against Damodar Lal is not correct inasmuch as the attempt in the present suit is to seek a relief to the effect that the sale deed executed by Narain Singh in favour of Damodar Lal be treated as mortgage instead of sale and that remains a relief particularly against Damodar Lal. Thus, learned counsel contended, for all the parties in the two suits being not the same, the application is hit by the first proviso to Section 33 of the Evidence Act. Learned counsel further submitted that the frame of issues in the suits remains very much relevant as per the requirement of third proviso to Section 33; and for the issues in the two suits being not substantially the same, the Trial Court has rightly rejected the application. Learned counsel urged that in the former ejectement suit, the only question to be decided was as to whether Narain Singh was a tenant of Bhagwati Devi and the Court was not to enquire into the facts relating to title of property whereas in the present suit, the question to be 8 decided is as to whether Narain Singh was owner of the property in question and the sale deed had been towards a mortgage transaction as alleged. According to the learned counsel, substance of issues in both the suits being different, the application under Section 33 could not have been allowed and has rightly been rejected. Learned counsel has referred to the decision of the Hon'ble Supreme Court in the case of Sashi Jena & Ors. Vs. Khadal Swain & Anr.: 2004 (1) Apex Court Judgments 528. Having given a thoughtful consideration to the entire matter, this Court is of opinion that the impugned order dated 23.05.2003 cannot be sustained; and the question is required to be remitted to the learned Trial Court to deal with the application in accordance with law. Section 33 of the Evidence Act reads as under: "Section 33. - Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.- Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of prov- ing, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or can- not be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable: Provided - that the proceeding was between the same parties or their representatives in interest; 9 that the adverse party in the first proceeding had the right and opportunity to 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." The fact is not in dispute that the witnesses Narain Singh, Kishorilal, Madanraj and Madho Singh, whose evidence is sought to be produced in the present suit, were examined in the former suit that was filed by Bhagwati Devi against Narain Singh. Further, the fact that all the aforesaid witnesses have expired is also not in dispute. Thus, the requirement of the main part of Section 33 stands satisfied. The prayer to consider in the present suit the evidence of the aforesaid four witnesses in the form of their testimony as recorded in the former suit has been declined on the ground that the requirements of first proviso and third proviso to Section 33 of the Evidence Act are not satisfied. While adopting its reasoning, the learned Trial Court seems not to have considered the frame of the present suit as made out from the plaint (Annex.1) where the plaintiff Narain Singh has referred to several of the transactions including the one with Damodar Lal but then, has not claimed any relief as such against him and has stated that the deed in favour of the 10 present defendant Bhagwati Devi was executed as a part of his settlement with Damodar Lal when his dues were paid by Bhagwati Devi and then, an agreement was entered into between himself and Bhagwati Devi; and the relief in this suit has been claimed essentially in relation to sale deed dated 15.09.1971 executed in favour of defendant Bhagwati Devi. In view of the limited subject matter of this writ petition, no comments are requisite nor are being made on the merits of the respective stand of the parties, but for the purpose of the first proviso to Section 33, the learned Trial Court seems not to have considered that so far Damodar Lal is concerned, the plaintiff has not specifically claimed a relief against him and did not join him in the first place a party in this suit; and he was later on joined only in the face of the objection raised by Bhagwati Devi about his being a necessary party. It has not been disputed, and rightly so, that the requirements of second proviso to Section 33 of the Evidence Act are fulfilled inasmuch as in the first proceedings Bhagwati Devi had the right and opportunity to cross-examine the witnesses concerned; in fact, she did cross-examine them. So far third proviso to Section 33 is concerned, the identity of issues in the two proceedings is not the requirement; but the proviso envisage that the questions in issue ought to be substantially the same in the two proceedings; and, as pointed 11 out in Krishnayya Surya Rao Bahadur Garu (supra), it is not necessary that all the questions in issue in the two proceedings should be substantially the same.. The learned Trial Court seems not to have examined the facts that in the first suit, Narain Singh did not admit existence of relationship of landlord and tenant and rather asserted himself to be the owner of the property and alleged that Bhagwati Devi was only a creditor mortgagee. It is a different matter that in the said suit, the question of ownership was not to be considered by the Trial Court but then, the defence of Narain Singh was required to be gone into in order to arrive at the finding as to whether there was a relationship of landlord and tenant or not. The question relating to the nature of transaction was involved in the former suit, even if not directly in the form of a separate issue. In the present suit, the true nature of transaction is the question directly in issue because now the issue is to the effect as to whether the present plaintiff Narain Singh mortgaged the suit property to the present defendant No.1 Bhagwati Devi ? The learned Trial Court further seems not to have examined the statement of the said deceased witnesses as are sought to be produced. A glance at such statements (Annex.7 to Annex.10) prima facie indicate that the assertion on the nature of transaction and status of the parties had 12 appeared in the testimony of Narain Singh and so also in the testimony of Kishorilal and, may be indirectly, had occurred in the statements of Madanraj and Madho Singh too; and all of them were definitely cross-examined by Bhagwati Devi. Learned counsel for the respondents has referred to the decision in Shashi Jena’s case. Therein, the Hon’ble Apex Court has pointed out that in the absence of any of the three pre-requisites, Section 33 of the Evidence Act would not be attracted. However, on facts, the said decision in Shashi Jena has no direct application to the present case inasmuch as the question therein had been about admissibility of a statement recorded during the course of inquiry under Section 202 of the Code of Criminal Procedure; and the Hon’ble Court held that the same would not be admissible in evidence under Section 33 of the Evidence Act and cannot form the basis of conviction because the accused has no right to cross-examine a prosecution witness examined during the course of such inquiry, Herein, as noticed, Bhagwati Devi had the right and did cross-examine the witnesses concerned in the former suit. In the result, for the learned Trial Court having not taken into comprehension the relevant aspects as are available on the record and having not applied the relevant 13 principles, the impugned order cannot be sustained. Having regard to the facts and circumstances of the case, it appears appropriate to set aside the order impugned and to remit the matter to the Trial Court to deal with the application under Section 33 of the Evidence Act after examining the material placed on record; and while applying the relevant principles and keeping in view the observations made above. It is, of course, made clear that this Court has not pronounced anything on the merits of the case of the parties or on the effect of the evidence of the said witnesses. Subject to the aforesaid observations, this writ petition is allowed; and the impugned order dated 23.05.2003 is set aside. The application under Section 33 of the Evidence Act shall stand restored for re-consideration of the Trial court in accordance with law. In the circumstances of the case, the parties are left to bear their own costs of this writ petition. The learned Trial Court shall, however, remind itself of the directions already made to proceed with the matter expeditiously; and looking to the age of the litigation, the Trial Court ought to accord a priority to the suit in question. (DINESH MAHESHWARI), J. //Mohan// 14