JAINAB BIBI SAHEBA Vs. HYDERALLY SAHIB

JUDGEMENT

(1.) The decision in Ponnuswami Pillay v. Singaram Pillay (1918) I.L.R., 41 Mad., 731 that the consent of the parties to a suit cannot make admissible the evidence given in a previous judicial proceeding between the same parties where some of the issues were the same was based mainly on the provisions of Sections 165 and 33 of the Indian Evidence Act. Section 165, which enables the presiding Judge to ask any questions, about any fact relevant or irrelevant contains a proviso, that the judgment must be based on facts declared by this Act to be relevant and duly proved.

(2.) The effect of this section merely is that, while the presiding Judge in the course of the trial may ask questions about irrelevant facts, including under the scheme of the Act statements made to the witness by other parties or hearsay, be must base his judgment upon facts, which are relevant to the issues and are duly proved. It does not throw any light on the question, what facts should be considered to be duly proved. Section 33, which occurs under the heading Statements by persons who cannot be called as witnesses provides that "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" in the circumstances set out in the rest of the section. As pointed out in Amir Ali and Woodroffe s Commentaries, the word relevant as used in the Act is equivalent to having probative force, and the effect of the section is to make the evidence admissible in the circumstances specified, independently of the consent of the parties. Though differently worded this section has really much the same effect as Order XXXVII, Rule 3, of the Rules of the Supreme Court, which enables the Court to order evidence taken in another case to be read. This is in accordance with the old Chancery practice which is stated as follows in Daniel s Chancery Practice, Chapter XII, Section 2(1), page 515: Evidence taken in another Court may be read in a cause on production of a copy of the pleadings if the two suits are between the same parties or their privies, and the issue is the same; and such depositions are admissible in evidence in the former cause. citing Williams v. Williams (1864) 12 W.R., 663. Such orders are only made in cases similar to those specified in Section 33, but if the Court could make such depositions admissible even without the consent of parties, the case for admitting them by consent is even stronger. Rules 1 and 18 of Order XXXVII, which require the examination of the witnesses to be viva voce in open Court, except in cases where proof is to be made by affidavit or evidence taken on commission to be admitted, and provide that these two modes of proof shall not be adopted except in the cases specified, both contain a saving clause enabling it to be done in any case by the consent of parties. This is a recognition of the principle that such matters may properly be regulated by the consent of the parties.

(3.) The admission by consent of evidence taken in other cases raising the same issues is of daily occurrence in England, and must now be taken to be the settled practice which is the law of the Court. If there is not much direct authority on the point, that would appear to be because it has never been seriously questioned. In Conradi v. Conradi (1868) L.R., 1 P. & D., 514, a divorce suit in which a new trial had been ordered, the question arose whether according to the practice of that Court the Judge s notes of the deposition of a witness at the earlier trial, who had since died, could be read at the second trial except by consent. Lord Penzance, who had been a Common Law Judge, observed that he had known of its having been made a condition of granting a new trial that the Judge s notes of the previous trial should be admitted. No such order could have been made except on the footing that the consent of the parties could render the evidence admissible.