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Judgment
Umamaheshwaram, J.—This Civil Revision Petition is filed as against the order of the District Judge of West Godavari, Eluru in I. A. No. 1222 of 1953 in O. S. No. 45 of 1950, refusing to admit in evidence the depositions of certain witnesses in O. S. No. 26 of 1930 on the file of the Agency Munsif''s Court. Polavaram, u/s 33 of the Indian Evidence Act. One of the questions to be decided in the present suit is, whether Veeranna, the husband of the 2nd Defendant and father of the 3rd Defendant was the adopted son of Tirupati Rayyudu. The Plaintiff is the daughter and the 1st Defendant is the widow of Tirupati Rayudu. The depositions sought to be marked in evidence u/s 33 of the Evidence Act. were those recorded in O. S. No. 26/1930 on the file of the Agency Munsif''s Court, Polavaram. That was a suit filed by Veeranna against Khandavalli Pullayya a debtor of Tirupati Rayudu estate. The defence put forward by Pullayya was that Veeranna was not the adopted son of Tirupati Rayudu and had consequently no locus standi to sue for the recovery of the money due to Tirupati Rayudu''s estate. Six witnesses were examined on behalf of Veeranna to prove that he was the adopted son. Except one, the other five witnesses are all dead. Consequently, Defendants 2 and 3 filed an application u/s 151 CPC to admit the prior depositions in evidence. The court below rejected the application "holding that the first proviso to Section 33 of the Evidence Act did not apply. The revision petition is filed against that order.
The short question for consideration is, whether the principles laid down in AIR 1933 202 (Privy Council) do not directly apply to the facts of the present case. Having carefully perused the judgment of the Judicial Committee, I have no doubt that all the requirements of Section 33 of the Evidence Act are satisfied in this case and that the decision of the court below is clearly erroneous. Omitting the words which are inapplicable, the section runs thus:
Evidence given by a witness in a judicial proceeding .....is relevant for the purpose of proving in a subsequent judicial proceeding...... the truth of the facts which it states when the witness "Is dead ...... 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 so cross examine; that the questions in tissue were substantially the same in the first as to the second proceeding.
The proviso is three-fold and it is not disputed that the second proviso is fulfilled in the present case. The third proviso is also fulfilled as it is not necessary that all the questions in issue in the two proceedings should bo substantially the . same. So, the main question that falls to be determined in the Revision Petition is, whether the terms of the first proviso are satisfied. Lord Russell of Killowen, in delivering the judgment of the Judicial Committee in Krishnayya Surya Rao v. Raja of pittapur (A) held that whatever might have been the intention of those who framed the section, the first proviso exactly inverted the requirements of the English Law and that this inversion should not be considered as accidental. The following ..passages set out clearly the construction placed by their Lordships on the first proviso and they are as follows:
It will be a question depending for its correct answer upon the circumstances of each case where the question arises, whether there was a party to the first proceeding who was a representative in interest of a party to the second proceeding within the wider meaning which their Lordships attribute to those words.
Turning back to the first proviso, it requires, in their Lordships'' view, that the party to the first proceeding should have represented in interest the party to the second proceeding in realtion to the question in issue in the first proceeding to which "the facts which the evidence states" were relevant. It covers not only cases of privity in estate and . succession of title, but also cases where both the following conditions exist, viz., (1) the interest of the relevant party to the second proceeding in the subject matter of the first proceeding is consistent with and not antagonistic to the interest ''therein of the relevant party to the first proceeding, and (2) the interest of both in the answer to be given to the particular question in issue in the first proceeding is identical. There may be other cases covered by the first proviso; but if both the above conditions are fulfilled, the relevant party to the first proceeding in fact represented in the ifirst proceeding the relevant party to the second proceeding in regard to his interest in relation to the particular question in issue in the first proceeding, and may grammatically and truthfully be described as a representative in interest of the party to the second proceeding.
What the section intends is to allow the admission of evidence given in former proceeding, which it is. for the special reasons, impossible to give in a later proceeding, Subject to the protection which tire provisos afford to the party to the later proceeding against whom the evidence is tendered. What the first proviso aims at securing is that the evidence shall not be admitted unless the person who tested, or had the opportunity of testing, the evidence by cross examination, either is himself, or represented the interest of, the party to the later proceeding against whom the evidence is tendered is that he Was (in the later case) in effect fighting that person''s battle as well as his own.
Applying those observations to the facts of this case. I am of opinion that all the tests are satisfied. Pullayya. who was a debtor to Tirupati Rayu-du''s estate fought the battle of the Plaintiff in this suit that Veeranna was not the adopted son of ''Tirupati Rayudu and was consequently not entitled to recover the amount. He represented the interest of the party to the second suit, namely, the Plaintiff herein. The interest of the Plaintiff herein in the subject matter of the first proceeding (viz., Tirupati Rayudu''s estate) is consistent with and not antagonistic to the interest therein of Pullayya who fought the battle in the first proceeding on behalf of the estate of Triputi Rayudu viz., that Veeranna. not being the adopted son, was not entitled to recover the monies which belonged to Tirupati Rayudu''s estate. So, the first condition la:d down by the Privy Council is satisfied.
Tire interest of both i.e., Pullayya and the Plaintiff in the answer to be given to the particular question in issue in the first proceeding, namely, as to whether Veeranna was the adopted son of Tirupati Rayudu, is identical. There is no doubt in my mind that the party to the first proceeding, Pullayya. was a representative in interest of the party to the second proceeding., viz., the Plaintiff herein. I do not agree with the court below that as Pullayya was a debtor of Tirupati Rayudu''s estate, his interests were antagonistic to that of the Plaintiff herein and that therefore the first test is not satisfied. I also do not agree with the contention of the learned Advocate for the Respondent that the representation of interest is confined only to joint Hindu families. The learned Law Lord gave one instance of joint Hindu family, why the legislative authority in India adopted a rule different from that obtaining in England. Even in the present suit, the Plaintiff is not entitled to any immediate interest in Tirupati Rayudu''s estate, as the widow of Tirupati Rayudu is alive and the Plaintiff has only a spes successionis. The present suit is only for a declaration that the adoption of Veeranna was not true and valid. Pullayya represented the estate of Tirupathi Rayudu in the prior suit in the same way as the Plaintiff is representing his estate in the present suit. I am, therefore, satisfied that the prior depositions are admissible in evidence and that the Order of the Court below is unsustainable and should be set aside.
Learned Counsel for the Respondent contended that even if the order of the Court below is wrong and is opposed to the terms of Section 33 of the Indian Evidence Act, it should not be set asido in Revision u/s 115 Code of Civil Procedure. He relied upon the decisions of the Privy Council in AIR 1949 156 (Privy Council) and the Supreme Court in Keshardeo Chamria Vs. Radha Kissen Chamria and Others, in support of the contention that an error of law does not warrant interference in revision. In AIR 1949 156 (Privy Council) , Sir John Beaumont in deliver-ing the judgment of the Judicial Committee states at page 8 (of ILR Mad): (at p 158 of AIR) that u/s 115 (c), Code of Civil Procedure, the High Court is entitled to revise an order if the Subordinate Court, in exercising jurisdiction, "has acted illegally, that is, in breach of some provisions of law, or with material irregularity, that is, by committing some procedure in the course of the trial which is material in that it may have affected the ultimate decision," The Supreme Court has only followed the Privy Council decision and has not laid down a different rule in the interpretation of Section 115(c). Following those two decisions, I hold that the order of the District .
THIS is liable to be set aside u/s 115(c) CPC as the District Judge has, in the exercise of his jurisdiction, acted in violation or breach of the provision;; of Section 83 of the Evidence Act.
A number of conflicting decisions of the other High Courts were cited during the course of arguments. It is unnecessary to discuss those cases in detail, in view of the clear pronouncements of the Privy Council and the Supreme Court referred to supra. The learned Advocate for the Petitioners relied on the Full Bench decision of the Lahore High Court in Gurdevi v. Md, Baksh AIR 1943 Lah 65 76 (D) wherein it is observed that:
When a court commits a gross error of procedure amounting to a material irregularity in the exercise of jurisdiction, e. g.. in arbitrarily shutting out material evidence, oral and documentary, the final decision may have to be set aside owing to such error and erroneous delay and irreparable loss may result if the result cannot he rectiiied at once u/s 115 Code of Civil Procedure.
Tlie learned Advocate for the Respondent strongly relied on Madhavrao v. Guiabbhai ILR 23 Bom 177 (E) and Enaet Manual v. Balaram Day 3 Cal WN 501 (F) in support of his contention that the High Court should not iulerlei''o in Revision, even if evidence is wrongly shut out. in both those cases, revision petitions were not filed against any interlocutory orders but only against the decrees passed by the lower appellate courts. As no Second Appeals lay against those decrees, it was contended that the decree should lie set aside in revision on the ground that the Judgments were vitiated by exclusion of certain relevant evidence. It was held in those cases by the High Courts of Bombay andCalcutta respectively that such decrees were not revisable. The learned Advocate for the Respondent urged that as the decision of the Calcutta High Court in Enaet Mondul v. Ba''lariim Dey (F) "was cited, with approval in AIR 1949 156 (Privy Council) and also by the Supreme Court in Keshardeo Chamria Vs. Radha Kissen Chamria and Others, I should follow that decision and not interfere in revision.
There is no doubt unicb force In that contention but, as Sir John augment states in the concluding portion of the Judgment, that the re-visional powers may be exercised under Clause (c) when the subordinate court has acted illegally i.e., "in broach of some provision of law" the order is liable to be set aside u/s 115 CPC Even assuming that the terms of Section 115(e) CPC do not warrant interference, I am inclined to hold that the High Court in exercise of its power of superintendence under Article 227 of the Constitution, is entitled to set right the error, in the interests of justice, I do not think that what happened in the Pittapur case should be allowed to be repeated in this case. The erroneous order, excluding evidence u/s 33 of the Evidence Act, had to be ''ultimately set aside by the Privy Council in the ''Pittapur case and the case remitted for re-hearing after receiving such evidence. An error of this description should, in my view, be corrected at the earliest stage to avoid gross miscarriage of justice. I therefore set aside the order of the court below u/s 115 (c) as also under the powers vested under Article 227 of the Constitution and hold that the prior depositions are admissible in evidence, u/s 33 of the Indian Evidence Act. The Civil Revision Petition is consequently" allowed with costs.