SRIKUMAR MUKHERJEE Vs. AVIJIT MUKHERJEE AND ORS.

JUDGEMENT

(1.) The point involved in this revisional application assumes importance because of the divergent opinions expressed by the several High Courts.

(2.) The point fell for consideration before this Court is whether the evidence of the witness shall be expunged when the said witness becomes unavailable to appear before the Court for further cross-examination.

(3.) In the instant case, the first witness of the plaintiffs, who filed affidavit as to examination-in-chief, was partly cross-examined by the defendant/petitioner. It is not in dispute that the said witness subsequently died and, therefore, becomes unavailable for further cross-examination. The defendant/petitioner took out an application for expunction of the evidence adduced by the said witness, as he cannot be cross-examined fully. The Trial Court rejected the said application saying that the said deposition cannot be expunged from the record, which is assailed before this Court.