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

Citation: [1995] SUPP. 3 S.C.R. 131 · Decided: 29-08-1995 · Supreme Court of India · Bench: K. RAMASWAMY, B.L. HANSARIA · Disposal: Appeal(s) allowed
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Judgment (excerpt)

V.M. MATHEW 
A 
v. 
V.S. SHARMA AND ORS. 
AUGUST 29, 1995. 
[K. RAMASWAMY AND B.L. HANSARIA, JJ.J 
B 
Evidence Act, 1872: 
Section 33-Witnes.}~Testimony of in previous proceedings-Relevancy 
and admissibility in subsequent proceedings-Conditions for applicability of C 
Section 33-Explained-S econd proviso-/Jzte1pretatio11 of-Expression-"Ad-
verse party in the first proceedings having the 1ight and opportunity to cross-
examine''-Effect and scope of the expression explained. 
Respondents No. 1 and 2 initiated proceedings for grant of Letters 
of administration in respect of a Will executed by deceased V. In these D 
proceedings, which were dismissed by the Trial Court and the High Court, 
K was examined as PW-1. In subsequent proceedings initiated by the 
respondents the appellant wanted to bring on record the deposition of K 
in the earlier proceedings under section 33 of Evidence Act but the Trial 
Court disallowed the same. On revision the High Court affirmed the 
decision of the trial Court holding that under section 33 what is relevant 
is that the party against whom the evidence is sought to be admitted must 
be a party in the previous proceedings. He must have had a right and 
opportunity to cross-examine that witness examined in the earlier proceed-
ing. Since the respondents had no right and opportunity to cross examine 
K, his evidence under Section 33 of the Act is not admissible. 
In appeal to this Court on the question whether the evidence of K in 
previous proceedings was relevant and admissible in the present proceed-
ings: 
Allowing the appellant's appeal and reversing the judgment of the 
High Court, this Court 
HELD: 1. The appellant is an adverse party in the first proceeding 
E 
F 
G 
and he had the right and opportunity to cross examine K who was 
examined as PW-I in the previous proceeding by the respondents; and the H 
131 
132 
SUPREME COURT REPORTS [1995) SUPP. 3 S.C.R. 
A 
evidence becomes admissible since K died pending proceeding. (137-H] 
B 
2. Section 33 of the Evidence Act consists of two parts, the main 
section, and the proviso. The main section lays down the conditions which 
are required to be satisfied for the previous statement of a witness in a 
judicial proceeding to be admitted in evidence in the later proceeding. 
Admittedly, since K died pending the proceeding the requirement of the 
main part of Section 33 stands satisfied. The only question is what would 
be the effect of the words "adverse party in the first proceeding having the 
right and opportunity to cross-examine". The question of a party having 
the right and opportunity to cross· examine will arise, if he is an adverse 
C 
party in the first proceeding. The second proviso, which is an exception to 
the main part of the section, operates only if the adverse party in the first 
proceeding did not have the right and opportunity to cross-examine the 
witness examined therein. The term 'adverse party' connotes that a party 
which has '1 right and opportunity to cross examine in the first proceeding. 
D This proviso, therefore, obviously protects the rights of the adverse party 
in the first proceeding and not the party who produced the witness. The 
party against whom the witness is produced in the previous proceeding is 
the adverse party and not the person who produced the witness and had 
the advantage of having examined the witness. (135-G-H; 136-A·CJ 
E 
F 
G 
Poonamchalld v. Motilal and Ors., AIR (1955) Raj. 179, approved. 
Swidara Rajali v. Gopala Thevall and Allr., AIR (1934) Mad. 100 and 
Brajaballav Ghose and Allr. v. Akhoy Begdi and Ors., AIR (1926) Cal. 705, 
disapproved. 
Dal Bahadur Singh and Ors. v. Bijai Bahadur Singh alld Ors., AIR 
(1930) PC 79, distinguished. 
Makhan Khall s/o Nawazali v. Emperor, AIR (1948) Sind 122, referred 
to. 
Sarkar on Evidence, 14th Edn. p.656, referred to. 
CIVIL APPELLATE .JURISDICTION : Civil Appeal No. 7835 of 
1995. 
H 
From the Judgment and Order dated 16.11.94 of the Kerala High 
V.M. MA THEW v. V.S. SHARMA [K. RAMASWAMY, J.) 
133 
Court in C.R.P. No. 547 of 1994 (C). 
T.L. Vishwanatha Iyer, S. Prasad, R. Shoba and Mr. M.K.D. Nam-
boodiry Advs. with him for the Appellant. 
P.S. Poti, Ms. Malini Poduval and M.T. George for the Respondent 
No. 1-2. 
The Judgment of the Court was delivered by 
K. RAMASWAMY, J. Special Leave granted. 
This appeal by special leave is filed against the order dated Novem-
ber 16, 1994 of the Division Bench of the Kerala High Court in CRP No. 
A
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