Case Name : VM Mathew vs VS Sharma and Ors Case Reference: (1995) 6 SCC 122 : (1995) Supp 3 SCR 131 Case Number: CA No 7835/1995 Court: Supreme Court Bench: 02 Coram: K Ramaswamy (Author), BL Hansaria Date: 29.08.1995
Evidence - Section 33 lays down conditions which are required to be satisfied. Note: These requirements are 1. Death of witness 2. Witness cannot be found 3. Witness incapable of giving evidence 4. Witness kept out of way by adverse party 5. Presence of witness cannot e obtained without delay and expense, which the court considers unreasonable
The term adverse party connotes that a party which has a right and opportunity to cross examine in the first proceeding. This proviso is to protect the right of the adverse party in the first proceeding and not the party who produced the witness.
The adverse party is the party in the previous proceeding against whom the evidence adduced was given against his interest
Where evidence is led against a party in ex-parte proceedings; the defendant obviously would not have the right and opportunity to cross-examine the witness. Such evidence against the said defendant cannot be used in the subsequent proceeding
The test of Evidence - Section 33 is that the statement of the particular witness should have been tested by both parties by examination and cross-examination to make it admissible in the later proceedings. It protects not only the rights of the person against whom proceedings have gone ex-parte but also co-plaintiffs and co-defendants, when evidence produced by co-plaintiff or co-defendants Since they (latter) would not be able to cross-examine such witness.
But the party who has examined the witness will not be permitted to raise the objection that such party has no right to cross-examine the witness.
A party calling a witness does not become an adverse party even though that witness is hostile to him.
Refer also: Dal Bahadur Singh vs Bijai Bahadur Singh AIR (1930) PC 79 (distinguished) {on first proviso} Mere opportunity to cross-examine is not sufficient, there must be a right to do so.
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