THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.2533 of 2010 Dated:24.09.2010 Between: Dr.S.J.Vince. …Petitioner and Bethany Chapel Trust, And others. …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.2533 of 2010 ORDER: The petitioner is the first defendant in O.S.No.79 of 1999. Being aggrieved by the order dated 29.04.2010 in I.A.No.499 of 2010 passed by the Court of the Senior Civil Judge, Narsapur, the petitioner is in revision before this Court. The first respondent instituted the suit for a declaration that Dr.Lilly Kayani Thomas is the Secretary and Treasurer of the plaintiff-Trust, that she is entitled to manage the Trust properties, and that the petitioner herein (hereafter called, the first defendant) has no locus standi to act as Secretary and Treasurer of the plaintiff-Trust. A decree for an amount of Rs.1,20,696/- with subsequent interest at 12% from the date of suit till the date of decree, and later at 6% was also prayed. In the said suit, respondent Nos.2 to 6 herein are arrayed as defendants 2 to 6. The first defendant filed a written statement opposing the suit. The suit is at the stage of trial. At that stage, the plaintiff filed I.A.No.499 of 2010 under Section 33 of the Indian Evidence Act, 1872, read with Section 151 of the Code of Civil Procedure, 1908, to receive the deposition of the petitioner herein as P.W.1 in O.S.No.96 of 1992 on the file of the Court of the Senior Civil Judge, Narsapur. The same was allowed by the impugned order. The Counsel for the petitioner/first defendant contends that in permitting the plaintiff to bring on evidence the deposition of the petitioner herein in the earlier suit, the Court below ignored the purpose of purport of Section 33 of the Evidence Act. According to him, when the petitioner is very much alive, his deposition made in the earlier suit cannot be permitted to be marked. Per contra, the Counsel for the first respondent/plaintiff submits that the first defendant who deposed in the earlier suit supporting the case of the plaintiff in the present suit refused to come as a witness, and therefore, the ingredients of Section 33 of the Evidence Act are satisfied. According to Section 33 of the Evidence Act, the deposition of a party in earlier proceedings between the same parties would be relevant in four situations. In Gheetirala Rama Murthy v Gheetirala Venugopal[1] this Court enumerated the conditions which ought to be fulfilled to render the earlier deposition relevant in the subsequent proceedings as follows. (1) that the first proceeding was between the same parties as the second proceeding or between the representatives in interest of parties to the second proceeding; in other words, the party to the first proceeding should have been a representative in interest of the party to the second proceeding and the identity of the parties in the two proceedings must be substantial and not nominal; (2) that the party against whom the deposition is tendered had the full opportunity to cross-examine the deponent when the deposition was taken; (3) that the issues involved in both proceedings are the same or substantially the same; and (4) that the witness cannot be called at the subsequent proceeding since he is dead, or cannot be found, or is incapable of giving evidence, or is kept out of the way by the other side, or his presence cannot be obtained without unreasonable amount of delay or expense. In this case, there is no dispute that the parties to the present suit are also parties in the earlier suit. There is also no dispute that the first defendant was cross examined in detail and the issue is substantially the same. If these conditions are satisfied, what is to be seen is whether the first defendant comes within the categories of the persons whose deposition in the earlier suit can be marked in the present suit. These are: i) a person who is dead; ii) a person who is incapable of giving evidence; iii) a person who is kept out of the way by the adverse parties; or iv) if the person whose presence cannot be obtained without delay or expense. In the affidavit accompanying I.A.No.499 of 2010 Dr.Lilly Kalyani Thomas as Secretary and Treasurer of the plaintiff-Trust specifically alleged thereof as under. My evidence in the above suit is closed and the 1st respondent/1st defendant’s evidence is taken up. The 1st defendant i.e., Dr.S.J.Vince who is the main contestant in the suit is not being examined. His advocate file the memo dated 30.03.2010 to the effect that the 1st defendant is not in a position to come and give evidence in this Hon’ble Court and his evidence in the suit is therefore given up and he is not being examined in the suit as a witness. The 1st defendant herein Dr.S.J.Vince was examined as a witness as PW-1 in O.S.96/1992 on the file of this Hon’ble Court referred to supra. As already stated the parties in the above suit and the suit O.S.96/1992, etc., are the same and the matters involved and the issues to be determined are the same. In the above circumstances the evidence of Dr.S.J.Vince who is the 1st defendant herein and who deposed as P.W.1 in O.S.96/1992 is relevant for the purpose of proving the truth of the facts stated therein. In the counter affidavit filed by the first defendant the above allegation is traversed in the following manner. This petition filed under Sec.33 of Indian Evidence Act is not at all maintainable under law. 1st defendant Dr.S.J.Vince is alive. As 1st defendant Dr.S.J.Vince is temporarily laid up due to pain in the back bone and as he is advised to take bed rest for some time, his evidence is given up only with a view to proceed with the trial of the suit as it is an old matter. On that ground petitioner has no right to file this petition under Sec.33 of the Evidence Act seeking this Hon’ble Court to receive the evidence of P.W.1 in O.S.96/1992 as evidence in this suit. (emphasis supplied) Thus, there is a clear admission that the first defendant is being kept out of the trial/evidence, and therefore, it is certainly a case which falls within the ambit of Section 33 of the Evidence Act. This Court has perused the impugned order passed by the Court below as well as the other connected records. The learned Senior Civil Judge has considered the matter in right perspective in a judicious manner, and therefore, the impugned order does not warrant any interference under Article 227 of the Constitution of India. The Civil Revision Petition fails, and is accordingly dismissed. There shall be no order as to costs. _________________ (V.V.S.RAO, J) .09.2010 vs [1] 2003 (2) ALT 668