S.B. CIVIL WRIT PETITION NO.7625/2007. Harjinder Singh Vs. Kor Singh & Anr. Date of Order :: 30th June 2008 HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. C.S.Kotwani, for the petitioner. Mr. G.J.Gupta, for the respondents. .... BY THE COURT: This writ petition is directed against the order dated 02.05.2007 as passed by the Additional Civil Judge (Junior Division) No.2, Sriganganagar in the suit for specific performance of agreement (Civil Original Suit No.321/1996) rejecting an application moved by the plaintiff-petitioner under Section 33 of the Evidence Act. In this writ petition, the plaintiff-petitioner Harjinder Singh has referred to the fact of his having filed the suit, and has annexed a certified copy of the plaint as Annexure-1; however, the said copy is of amended plaint as filed on 12.01.2001; and it appears that the suit in question was instituted in the year 1992. According to the plaint averments, the case of the petitioner is that the defendant No. 1 Kor Singh had his agricultural land at Chack 10Q Tehsil Sriganganagar and at Chack Mudoliyawali; that the defendant No. 1 entered into an agreement with the petitioner to sell his land at Chack Mudoliyawali for a consideration of Rs. 6000/- and in the 1 alternative to sell his 18 biswas of land at Chack 10Q in Kila No. 22 of Murraba No. 30. The plaintiff-petitioner has alleged that on 23.02.1981, the said defendant received an amount of Rs. 3,000/- and, while executing an agreement, promised to hand over possession by 15.04.1981 and to get registered the sale document by 15.04.1982; and agreed that upon failure, he shall remain liable to make payment of the said amount Rs. 3,000/- and equal amount towards damages; and further that, if so desired, the plaintiffs would be entitled to get the agreement enforced through the Court. The plaintiff has further alleged that the defendant expressed his inability to sell the land at Chack Mudoliyawali but handed over possession of the land at Chack 10Q after receiving further an amount of Rs. 2,500/-; and promised to execute the document after getting the land mutated in his name in succession from his late father. According to the plaintiff, he has developed the land in question with substantial investment and now, for the escalation in price, the defendant was avoiding execution of the document and intending to sell the land to somebody else. In paragraph 9 of the plaint, the plaintiff has referred to the fact that the defendant entered into an agreement with some other person whereupon he was proceeded in Criminal Case No. 22/1988: State Vs. Kor Singh; and has averred that the original agreement had been filed in the said criminal case. While stating that he remained ready and willing to get 2 the agreement performed and while asserting his right to get the agreement performed, the plaintiff has stated cause of action having arisen on 01.12.1992 when the defendant refused to perform the agreement. It appears from the averments as taken in paragraph 12A of the amended plaint that according to the plaintiff, along with other land, the suit land was sold by the defendant No. 1 to the defendant No. 2 on 16.05.1998 during the pendency of this suit; and, while alleging such sale to be void and ineffective against his interest, the plaintiff has submitted that if necessary, the defendant No. 2 be directed to execute the sale deed in his favour. In his written statement filed on 20.05.1993 (Annex.2), the defendant No. 1 Kor Singh has denied having entered into any agreement with the plaintiff or having received any amount or having delivered possession; and has asserted that the land in question being a fragment, measuring only 18 biswas, could not have been sold at all. The said defendant has denied the plaintiff having any right to specific performance and has also taken the objection that the suit remains barred by limitation. Further, in his written statement filed 02.08.2001 (Annex.3) the defendant No. 2 Gurjinder Singh, while reiterating the stand of the defendant No. 1 that no such agreement was entered into nor any possession was delivered nor any amount was received; and that such fragment could 3 not have been sold at all, has proceeded to assert that he is a bonafide purchaser for value under the registered sale deed dated 16.05.1998 and the land has duly been mutated in his name. The said defendant would maintain that he had no knowledge of any such alleged agreement; that the suit filed in the year 1992 remains barred by limitation; and that no decree for specific performance could be granted against him. The defendant No. 2 has further stated in paragraph 18 of the written statement that as per his information, a criminal case bearing number 22/1988 was launched against the defendant No. 1 Kor Singh under Section 420 IPC in relation to the same land and with reference to the alleged agreement but he was acquitted therein, and nothing as alleged by the plaintiff was found true. It has also been alleged that the defendant No. 1 thereafter filed a suit seeking damages for malicious prosecution (Civil Original Suit No. 252/1994) that was decreed on 26.09.1996 and thus, according to the defendant No. 2, the plaintiff has unnecessarily filed the present suit only in order to harass and the suit is liable to be dismissed with compensatory costs. It appears further from the certified copy of the memo of issues (Annex.4) that in this suit, earlier the issues were framed on 16.10.1996 and issues Nos. 5A and 5B were added later, on the questions as to what is the effect of the land having been sold during the pendency of the suit to the 4 defendant No. 2; and as to whether the defendant No. 2 is a bonafide purchaser? The application under Section 33 of the Evidence Act came to be moved by the plaintiff-petitioner in this suit on 06.10.2001 with the submissions that the agreement in question was verified by Notary Public Ramesh Dhankani who has since expired but was examined in Criminal Case No. 22/1988 before the Judicial Magistrate No. 1, Sriganganagar and his statement being relevant for the present suit be received in evidence. The application was put to contest by the defendant No. 2; and the Trial Court has proceeded to reject the application so moved by the petitioner essentially on the grounds that the defendant No. 2 who is a necessary and affected party in this suit was not a party to the previous proceeding and had no right nor any opportunity to cross examine the said witness and that the plaintiff has failed to show if the questions in issue in the previous proceeding were substantially the same as are involved in the present suit. 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 entirely irrelevant considerations. Learned counsel has referred to the certified copies of the FIR lodged by the petitioner (Annex.8) and the statement of late Shri Ramesh Dhankani (Annex.9) in Criminal Case No. 22/1988: State Vs. Kor Singh and 5 submitted that the said criminal case was registered between the parties on the FIR lodged by the petitioner on the basis of the very same agreement and, therefore, the question in issue in the said case had been substantially the same as is involved in the present suit; that the petitioner answers to the description of ‘prosecutor’ for the purpose of Section 33 of the Evidence Act; and that the said notary gave his evidence in the criminal case with regard to the execution of the agreement in question and the defendant did cross-examine him. Hence, according to learned counsel, all the requirements of Section 33 of the Evidence Act are satisfied and such statement of the deceased witness ought to have been taken into consideration by the Trial Court. Per contra, learned counsel for the defendants-respondents contended that the impugned order does not suffer from any jurisdictional error. Learned counsel submitted that the defendant No. 2 was not at all a party to the said criminal proceeding and hence, the statement recorded during such proceeding cannot be relied upon in this suit. Learned counsel further submitted that the petitioner has failed to establish if the question in issue in the two proceedings were substantially the same. According to learned counsel, the requirements of Section 33 of the Evidence Act being not satisfied, the application has rightly been rejected and the impugned order calls for no interference. 6 Having given a thoughtful consideration to the entire matter, this Court is of opinion that the impugned order dated 02.05.2007 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; 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 witness Ramesh Dhankani whose evidence is sought to be produced in the 7 present suit was examined in Criminal Case No. 22/1988: State Vs. Kor Singh; and further, the fact that the said witness has since 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 said witness in the form of his testimony as recorded in the said criminal case has been declined on the ground that the requirements of the provisos to Section 33 of the Evidence Act are not satisfied. While adopting its reasoning, the learned Trial Court seems not to have considered the effect of the fact that the defendant No. 2 is admittedly a transferee pendente lite to whom the land in dispute is said to have been alienated by way of registered sale deed on 16.05.1998, much after filing of this suit. Then, the learned Trial Court has not addressed to the requirements of first proviso to Section 33 of the Evidence Act that the first proceeding ought to be “between the same parties or their representatives in interest”. Yet further, the learned Trial Court seems not to have considered the ratio of the decision of the Hon’ble Supreme Court in the case of V.M. Mathew v. V.S. Sharma and Ors: AIR 1996 SC 109 in relation to the second proviso to Section 33 that,- "The adverse party referred in the proviso is the party in the previous proceeding against whom the evi- dence adduced therein was given against his interest. 8 He had the right and opportunity to cross-examine the witness in the previous proceeding.....” The learned Trial Court has made a cursory comment that the plaintiff has failed to show if the questions in issue in the previous proceedings were substantially the same as are involved in the present suit. 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 out in Krishnayya Surya Rao Bahadur Garu and Another Vs. Vekata Kumara Mahipathi Surya Rao Bahadur Garu: AIR 1933 Privy Council 202, 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 pleadings of the parties particularly in relation to the nature of the said Criminal Case No. 22/1988, which, as noticed hereinbefore, indicate that the question relating to the agreement in question was involved in the former proceedings. The learned Trial Court further seems not to have examined the statement of the said deceased witness that prima facie makes out that evidence was led on the fact that he did verify the agreement in question on 23.02.1981. In the aforesaid view of the matter, for the learned Trial Court having not taken into comprehension the relevant 9 aspects as are available on the record and having not applied the relevant principles of law, 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 witness. Subject to the aforesaid observations, this writ petition is allowed; and the impugned order dated 02.05.2007 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. (DINESH MAHESHWARI), J. //Mohan// 10