PADAM CHANDRA SINGHI Vs. PRAFUL B DESAI

JUDGEMENT

(1.) This notice of motion taken out by the plaintiffs was rejected for the reasons to be recorded. Accordingly, reasons with factual backdrop is being recorded.

(2.) The notice of motion claimed following relief:

(3.) The plaintiff No. 1 in support of the notice of motion has filed affidavit dated 28th February, 2007 giving background to seek relief mentioned hereinabove. According to plaintiff No. 1, one of his advocate friends has told him that the evidence of Dr.Earnest Greenberg, New York, recorded in C.C. No. 82/P/1998 now C.C. No. 92/PW/2005 can be used for the decision of the present suit. In the affidavit, details of the criminal prosecution faced by Dr.P.B.Desai and Dr.A.K.Mukherjee, defendant Nos. 1 and 2 herein are given. It is also stated that the evidence of Dr.Greenberg was recorded in the criminal prosecution wherein the defendant Nos. 1 and 2 are being prosecuted for having committed offence under Section 338 read with Section 114 of Indian Penal Code. That evidence of Dr.Greenberg was recorded through video conferencing. He was thoroughly cross-examined by defendant Nos. 1 and 2 through video conferencing. That Dr.Greenberg is now 78 years of age and he cannot come to India. His presence cannot be obtained in view of his advance age and that he had expressed his unwillingness to come to India even on earlier occasion. In view of financial difficulties, it is also not possible for the plaintiffs to seek his presence from New York to India. The plaintiffs have, thus, prayed that considering provision of Section 33 of the Evidence Act, 1872 ("Act" for short), they be permitted to produce certified copies of the evidence of Dr.Greenberg recorded in criminal case and be further permitted to use the same in the present suit.