DEVER PARK BUILDERS PVT LTD Vs. MADHURI JALAN

JUDGEMENT

(1.) In this extraordinary suit the short but complex point has been raised by the parties as to whether the evidence recorded by the original defendant No. 1 Mahabir Prasad Jalan, since deceased on commission should be expunged and/or rejected at this stage, as, cross-examination could not be completed in view of his death during examination.

(2.) By my order dated 18/07/2001, though having heard the learned Lawyer for the plaintiff I expunged the evidence of the aforesaid defendant, however, subsequently I granted stay of operation of the aforesaid order and I decided to resolve the issue raised above.

(3.) Mr. Bimal Kumar Chatterjee, Senior Advocate appearing with Mr. Ajoy Krishna Chatterjee Senior Advocate contends that it is true the original defendant did not get opportunity to face cross-examination fully in view of his death. However, evidence so far given by him in his full examination in chief and in part cross-examination together with document exhibited in the commission should be admitted, but the weight of such evidence should be attached such degree and standard as this Court will think fit and proper. Therefore, his evidence cannot be rejected or expunged altogether, as he was not cross-examined fully for no fault of his own. He was seriously ill during the relevant time. From time to time attempt was made to cross-examine him and he was prepared to face it. This could not happen. So far this reason entire evidence should not be brushed aside. They seek support for their contention of the provision of Order XXVI, Rules 1, 2, 3, 7, 8, 9 and 10 of the Code of Civil Procedure, Order XXIX, Rules 7, 8, 9 and 10 of CPC, Rules 1, 2, 3, 4 and 5 of Chapter XXII of the High Court Rules, Original Side, Section 33 of the Evidence Act and Sarkar on Evidence (15th Edn.) Vol. 1, Pg. 750. They have placed several decisions of various High Courts and Supreme Court that have decided the aforesaid question both in Civil and Criminal Cases.