CIVIL APPEAL 5585 of 2003 on 19 September 2003

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

Civil Revision No. 5585 of 2003Date of Decision: 4.8.2010.

Gurnam Singh

--Petitioner

Versus

U.H.V.P.N.L and others--Respondents

CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI.

Present:-Mr. G.S. Goraya, Advocate for the petitioner.

Ms. Vandana Malhotra, Advocate for the respondents.***

PERMOD KOHLI.J(ORAL)

This revision is directed against the order dated 19.9.2003passed by the Addl. Civil Judge (Sr. Divn.), Pehowa. Vide the impugnedorder the learned Trial Court has allowed an application filed by therespondents-defendants for recalling witness Pushpinder Kaur andproduction of certified copies of her statement made in another criminalcase.

Briefly stated the facts as have emerged from the impugnedorder are that the petitioners-plaintiffs filed a suit for permanent injunctionin the Court of Addl. Civil Judge (Sr. Divn.), Pehowa. Evidence of both theparties came to be closed except the rebuttal evidence of the plaintiffs. Thecase was posted for rebuttal evidence and the arguments. It is at this stagethat the respondents-defendants attempted to produce certified copies ofstatements of Pushpinder Kaur wife of the plaintiff made in criminalproceedings in which she was a complainant. Production of these certifiedcopies was not permitted. This prompted the defendants to make anapplication under order 18 rule 17-A of C.P.C for additional evidence and

recalling the witness. After hearing the parties and in view of the repeal ofprovisions of Rule 17-A of Order 18, the Trial Court treated the applicationunder section 151 C.P.C, allowed the same vide the impugned order.Certified copies of the statement were allowed to be taken on record and thePushpinder Kaur wife of the present petitioner, who had earlier appeared asa witness has been recalled to prove the certified copies of her statement.

When notice of motion was issued in this case, proceedingsbefore the Trial Court were stayed. As a result the trial of the suit issuspended since then. Petitioners have chosen not to appear, even though,the case was listed and shown in the cause list a number of times. One ofthe ground for challenging the impugned order is that after the repeal of theprovisions of Rule 17-A of Order 18, the Trial Court was not justified ininvoking the provisions of Section 151 C.P.C as the same is in directviolation of Section 33 of the Evidence Act.

The contention seems to be misplaced. Section 33 of theEvidence Act makes the evidence given by a witness in judicial proceedingsrelevant at a later stage of the same judicial proceedings or any othersubsequent proceedings, even if, the witness is dead or cannot be found or isincapable of giving evidence or his presence cannot be secured. That doesnot mean that the evidence becomes irrelevant where the presence of thewitness can be procured to confront him with the statement made inprevious judicial proceedings, if, the conditions under proviso to section 33are satisfied. Section 145 of the Evidence Act permits the cross-examination of a witness as to the previous statements in writing. Similarly,Section 157 provides for corroboration of the testimony of the witness onthe basis of a formal statement relating to the same fact or issue. From the

conjoint reading of the aforementioned provisions the plea raised by thepetitioner that during the life time of the witness his/her earlier statementcannot be confronted, is totally misconceived and amounts tomisapplication of law. Rather various provisions of the Evidence Actfacilitate the production of such evidence particularly to confront thewitness with his previous statement made in judicial proceedings whichalone can sub serve the justice. Apart from the above the order passed bythe Trial Court is in the realm of judicial discretion. If, a judicial discretionis validly exercised, no interference is warranted in exercise of therevisional jurisdiction, even if, it causes some prejudice to the opposite side.

In view of the above, this petition is dismissed.

8.2010.lucky

Whether to be reported? Yes.

(PERMOD KOHLI) JUDGE