R. Mitlal, J. - (1.) THIS revision petition has been filed by the Plaintiff against an order of the Subordinate Judge 1st Class, Moga, dated November, 7, 1970, allowing the Defendants to produce certified copies of the statements of the witnesses from another case.
(2.) BRIEFLY , the facts are that the Plaintiff instituted a suit for recovery of Rs. 28,76/ -(sic) During the pendency of the suit, the Defendants tendered the statements of Tarsem Lal and Luxmi Narain, recorded in another suit pending between the parties. The learned trial court inspite of the objection of the Plaintiff admitted the statements and exhibited them. The Plaintiff has come up in revision against that order to this Court. It is contended by the learned Counsel for the Petitioner that the statements of the aforesaid witnesses were inadmissible in evidence under Section 35 of the Indian Evidence Act. He submits that the Defendant did not show that all the ingredients mentioned in Section 33 had been satisfied. He, in support of his contention placed reliance on Phool Chand v. Amrit Lal, 1980 Rev. L.R. 80. The learned Counsel for the Respondents have fairly admitted that the Respondents have not proved that the ingredients in Section 33 of the Evidence had been satisfied it cannot be disputed that only the statements of the witnesses recorded in a case can be tendered in another case if all the conditions mentioned in section 33 namely, that the witnesses is dead or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party or his oerence(sic) cannot be obtained without an amount of delay or expense, have been proved. It is further provided in the section that in both the cases the question in issue should be substantially the same that the adverse party in the first proceedings had the right and opportunity to cross -examine and that the proceedings were between the same parties As the aforesaid ingredients have not been proved, therefore, the learned trial court had no jurisdiction to exhibit the statements of farem(sic) Lal and Laxmi Narain in the aforesaid view, I am fortified by the observations in Phool Chana's case (supra).
(3.) FACED with aforesaid situation, the learned Counsel for the Respondents sought to argue that the court may be ordered to record the statements of Tarsem Lal and Laxmi Narain. I regret my inability to accept this contention of the learned Counsel. The Respondents may if the are so advised, make an application to the trial court for that purpose and the Court will decide the matter after hearing the parties.;