ORDER
V.C. Daga, J.
Page 0798
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:
(a) that this Honble Court be pleased to direct the Learned Additional Chief Metropolitan Magistrate, 47th Court at Esplanade, Bombay (who is presently trying the case) (i) to transmit the evidence of Dr.Earnest Greenberg of New York (U.S.A.) recorded by Commissioner, Ms.Usha Aiyar, Addl. Chief Metropolitan Magistrate, Mumbai, as per Order of the Honble Supreme Court of India dated 1st April, 2003 in Appeal No. 476 of 2003 in case of State of Maharashtra v. 1. Dr. P.B. Desai & 2. Dr. A.K. Mukherjee being C.C. No. 82/P/1998 now CC No. 92/PW/2005 to this Honourable Court or in the alternative to allow the Plaintiff No. 1 abovenamed to produce in this Honble Court Certified copy of abovesaid evidence of Dr.Greenberg in lieu of it; and (ii) read the said evidence of Dr.Greenberg recorded through video-conferencing in C.C. No. 82/P/1998 now C.C. No. 92/PW/2005 in this Suit for decision in this suit in the interest of justice;
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Background for Notice of Motion:
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.
4. The above prayer made is opposed by defendant No. 1 and other defendants, who are trustees of the Bombay Hospital, whereas defendant No. 2 has supported the prayer made by the plaintiffs. The defendant Nos. 7, 10 and 12 to 14 have also filed their joint counter affidavit raising various factual and legal contentions referred to hereinafter.
Rival Submissions
5. Mr.Bharat Joshi, learned Counsel appearing for the plaintiffs has urged that the prayer made is well within the scope of Section 33 of the Evidence Act. He submits that by no stretch of imagination the defendant Nos. 1 and 2 can say that they had no opportunity to cross-examine Dr.Greenberg and that the subject matter of criminal prosecution and the present suit is substantially the same as such the evidence recorded in the criminal proceeding can be used in present suit against defendant Nos. 1 and 2.
6. Mr.Joshi, learned Counsel for the plaintiffs while reiterating factual aspects of the matter advanced his submissions in consonance with affidavit of plaintiff No. 1 filed in support of notice of motion. He, thus, prayed that plaintiffs be permitted to file certified copies of evidence of Dr.Greenberg recorded in C.C. No. 82/P/1998 now C.C. No. 92/PW/2005 and the same may be read in evidence in this suit.
7. Per contra, Mr.S.H.Doctor, learned senior counsel appearing for defendant No. 1 took strong objection to the said prayer. Firstly, on the ground that the evidence of both parties in this suit has already been recorded and that both parties have closed their respective sides as such, in his submission, at this belated stage the motion should not be entertained.
Page 0800
8. Mr.Doctor further submitted that somewhere in the year 2001, i.e. seven years back, the plaintiff was to take out chamber summons for video conferencing for examining Dr.Greenberg in this suit as his witness. Subsequently, plaintiff made a statement that he did not want to examine any more witnesses and dropped the idea of moving the said chamber summons for examining Dr.Greenberg through video conferencing. The plaintiff, thus, consciously took a decision not to examine Dr.Greenberg. According to Mr.Doctor, the order dated 29th August, 2001 passed by learned single Judge (A.B.Palkar, J.) records this factual aspect.
9. Mr.Doctor in support of his submission placed reliance on the judgment in the case of Sashi Jena v. Khadal Swain . He, thus, urged that considering the totality of the facts and circumstances of the case, the present notice of motion is liable to be rejected.
10. Mr.Setalwad, learned Counsel appearing for defendant Nos. 7, 10 and 12 to 14 also strongly opposed this motion contending that his clients are not aware of the nature of evidence sought to be brought on record. His clients had no opportunity to look into that evidence. He urged that even the copies of the evidence are not on record to find out, whether or not the evidence sought to be brought on record is prejudicial to the interest of his clients.
11. Mr.Setalwad further submits that his clients had no opportunity to cross-examine Dr.Greenberg. He further submits that his clients are also entitled to cross-examine Dr.Greenberg to disprove the charge of negligence levelled against defendant No. 1 and/or defendant No. 2 and that it is open for his clients i.e. the trustees of the Bombay Hospital to prove that no negligence was caused by defendant Nos. 1 and 2 so as to get themselves absolved of the vicarious liability, if any. He pressed into service judgment of the Apex Court in the case of V.M. Mathew v. V.S. Sharma in support of his submission to contend that he had no opportunity to cross-examine Dr.Greenberg. He submits that the co-defendants may have cross examined Dr.Greenberg but his clients i.e. defendant Nos. 7, 10 and 12 to 14 would also like to avail the opportunity of cross-examining him, if at all he is to be examined.
12. Mr.Doctor and Mr.Setalwad jointly urged that the motion taken out does not answer the requirements or ingredients of Section 33 of the Evidence Act for the following reasons:
(a) Firstly, the present civil proceeding is not “subsequently initiated judicial proceeding” within the meaning of Section 33 of the Act and the suit was filed by the plaintiff No. 1 and his late wife Mrs.Leela Singhi on 17th December, 1988 in this Court, while chargesheet was filed by the Azad Maidan Police Station only after a copy of the order dated 11th February, 1991 passed by the Maharashtra Medical Council was received by them. Thus, this suit is prior in point of time.
Page 0801
(b) Secondly, the first proviso to Section 33 requires that the proceedings should be between the same parties or their representatives in interest. In the present suit parties include trustees of the Bombay Hospital, who are not impleaded as accused in the criminal proceedings;
(c) Thirdly, the aforesaid criminal prosecution is by the State of Maharashtra and not by plaintiffs;
(d) Fourthly, the second proviso to Section 33 of the Act inter alia; stipulates that opposing party in the first proceedings should have had the right and opportunity to cross-examine the witness whose evidence is sought to be brought on record. Though defendant Nos. 1 and 2 had the right and opportunity to cross-examine Dr.Greenberg through video conferencing, the other defendants in the present suit, viz. trustees of the Bombay Hospital had no such opportunity to cross-examine him;
(e) Lastly, the evidence of Dr.Greenberg was recorded by the Commissioner, subject to several objections which were raised at the time of recording evidence. Those objections are pending for decision and, therefore, until those objections are heard and finally decided by the Court trying criminal prosecution, the evidence of Dr.Greenberg cannot be admitted in the present suit.
13. In short, both the learned Counsel for defendants prayed for rejection of the present notice of motion with costs.
Consideration:
14. Having heard rival parties, let me now turn to the text of Section 33 of the Evidence Act, which reads as under:
33. Relevancy of certain evidence, for proving in subsequent proceeding, the truth of fact therein stated.
Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead, or cannot be fond, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:
Provided that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding.
Explanation. A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.
The above section enumerates the cases in which the evidence given by a witness (a) in a judicial proceeding, or (b) before any person authorized by law to take it, is relevant in a subsequent judicial proceeding or a later Page 0802 stage of the same proceeding and can be read in five eventualities, viz.; (a) when the witness is dead; (b) when he cannot be found; (c) when he is incapable of giving evidence; (d) when he is kept out of the way by the adverse party; or (e) when his presence cannot be obtained without any amount of delay or expense which the Court considers unreasonable; provided (1) if the proceeding was between the same parties, or their representatives in interest; (2) if the adverse party in the first proceeding had the right and opportunity to cross-examine; and (3) if the questions in issue were substantially the same in the first as in the second proceeding. It is, thus, clear from Section 33 that the evidence of depositions in former trials is admissible. This section is an exception to the hearsay rule.
15. The depositions are in general admissible only after proof that the persons who made them cannot be produced before the Court to give evidence. It is only in cases where the production of the primary evidence is beyond the partys power that secondary evidence of oral testimony is admissible.
16. It is an elementary right of a litigant in civil suit that a witness, who is to testify against him, should give his evidence before the Court trying the case, the adverse party gets an opportunity to cross-examine at the same time so that the Court has the opportunity of seeing the witness and observing his demeanour and can, thus, form a better opinion as to his reliability rather than reading a statement or deposition given by that witness in a previous judicial proceeding or in an early stage of the same judicial proceeding.
17. Where a statute i.e. the Evidence Act, makes provision for exceptional cases where it is impossible for the witness to be before the Court, the Court is expected to be careful to see that the conditions on which the statute permits previous evidence given by the witness to be read are strictly complied with. Previous statement of a witness not appearing in Court cannot be taken on record under Section 33 without strict proof of the conditions justifying it before taking it on record.
18. Having noticed the purpose of Section 33, now let me consider the factual aspects keeping in view the purpose and requirement of Section 33 of the Evidence Act as understood.
19. The factual matrix reveals that in the criminal proceeding, the defendant Nos. 1 and 2 herein are accused Nos. 1 and 2, whereas the other defendants including defendant Nos. 7, 10, 12 to 14 are not parties to the criminal prosecution. Therefore, the first question that arises for consideration is: “whether the subject criminal proceeding can be said to be between the same parties or their representatives in interest as is required by the first proviso. This proviso requires that the party to the first proceeding should have represented the interest of the party to the second proceeding in relation to the question in issue in first proceeding to which the facts which the evidence states were relevant. It covers not only cases of privity in estate and succession of title, but also the cases where both the required conditions exist, viz., (i) the interest of the relevant party to the second proceeding in the subject matter of the first proceeding is consistent with and Page 0803 not antagonistic to the interest therein of the relevant part to the first proceeding and (ii) the interest of both in the answer to be given to the particular question in issue in the first proceeding is identical. If both these conditions are fulfilled, then only party to the first proceeding can be described as a “representative in interest” of the party to the second proceeding within the wider meaning of those words as laid down above.
20. So far as the case at hand is concerned, the interest of the party to criminal proceeding may be consistent with the interest of defendant Nos. 1 and 2 herein but not with the interest of other defendants. Consequently, neither defendant Nos. 7, 10 and 12 to 14 can be said to be representatives in interest of defendant Nos. 1 and 2 (accused Nos. 1 and 2 in first criminal proceeding) nor defendant Nos. 1 and 2 can be said to be representatives in interest of the other defendants. Thus, the requirement of first proviso to Section 33 itself cannot be said to have been established.
21. Whether the adverse parties in the first proceeding had the right and opportunity to cross-examine would be another question in view of the requirement of second proviso. At this juncture, leaving aside the question as to whether the present proceeding is first proceeding or the criminal proceeding is first proceeding, the fact remains that defendant Nos. 7, 10 and 12 to 14 had no opportunity to cross-examine Dr.Greenberg when he was examined in the criminal proceeding through video conferencing. These defendants have no knowledge of the evidence brought on record in the criminal proceeding. As on date, they are not aware as to the extent that material or evidence is prejudicial to their interest. Even the oral evidence of Dr.Greenberg is neither produced on record nor supplied to other defendants. A mere statement made by Mr.Joshi, learned Counsel for the plaintiffs that this evidence will not be used against defendants other than defendant Nos. 1 and 2 can hardly hold any water, especially, when other defendants are entitled to disprove the case sought to be made out by the plaintiffs against defendant Nos. 1 and 2 since they are being charged vicariously for the alleged act of defendant Nos. 1 and 2.
22. The question whether the issues for trial are substantially the same in both the trials also needs to be considered since it is a requirement of the third proviso. The issues in first and second proceedings are not substantially the same. In criminal trial the issue of negligence on the part of defendant Nos. 1 and 2 would be only one part of the matter which may be a substantial issue in both proceedings. However, the issue relating to vicarious liability can hardly be said to be the issue involved in the criminal proceeding.
23. The Apex Court in the case of Sashi Jena v. Khadal Swain (supra) has ruled as under:
From a bare perusal of the aforesaid provision, it would appear that evidence given by a witness in a judicial proceeding or before any person authorized to take it is admissible for the purpose of proving in Page 0804 a subsequent judicial proceeding or in a later stage of the same judicial proceeding, the truth of the facts which it states in its evidence given in earlier judicial proceeding or earlier stage of the same judicial proceeding, but under proviso there are three prerequisites for making the said evidence admissible in subsequent proceeding or later stage of the same proceeding and they are: (i) that the earlier proceeding was between the same parties; (ii) that the adverse party in the first proceeding had the right and opportunity to cross-examine; and (iii) that the questions in issue in both the proceedings were substantially the same, and in the absence of any of the three prerequisites aforestated, Section 33 of the Act would not be attracted. This Court had occasion to consider this question in the case of V.M. Mathew v. V.S. Sharma in which it was laid down that in view of the second proviso, evidence of a witness in a previous proceeding would be admissible under Section 33 of the Act only if the adverse party in the first proceeding had the right and opportunity to cross-examine the witness. The Court observed thus at AIR pp.110 and 111; (SCC p.125, para 8)
8. The adverse party referred in the proviso is the party in the previous proceeding against whom the evidence adduced therein was given against his interest. He had the right and opportunity to cross-examine the witness in the previous proceeding…the proviso lays down the acid test that statement of a particular witness should have been tested by both parties by examination and cross-examination in order to make it admissible in the later proceeding. ”
24. The defendant Nos. 7, 10 and 12 to 14 are
also entitled to disprove the negligence alleged on the part of defendant Nos. 1 and 2, if their vicarious liability is to be canvassed.
25. Apart from this, it is not in dispute that the evidence of Dr.Greenberg was recorded subject to objections raised during the course of recording of evidence. Those objections are yet to be addressed by the Court trying criminal case, as such that evidence, which is full of objections, cannot be allowed to be read in evidence in this suit. Thus, looking to the factual as well as legal scenario sketched hereinabove, I find it difficult to make this notice of motion absolute.
26. Two more aspects highlighted during the course of the submissions need to be taken into account while considering this notice of motion. As back as in the year 2001, when Dr.Greenberg was maintaining good health, he could have been examined on video conferencing as was examined in the criminal proceeding. As a matter of fact, the proposed chamber summons, which was to be taken out for recording evidence on video conference, was dropped by the plaintiff as back as in the year 2001 which is evident from the order of learned single Judge (Palkar, J.) dated 29th August, 2001 passed in Review Petition (Ldg.) No. 39/2001 taken out in the present suit, the relevant part of which reads as under:
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Delay condoned. By this review application the petitioner/ original plaintiff in the suit wants to review the date 21st March, 2001 by which the suit was moved from board of expedited suits. On finding that the plaintiff himself was taking certain steps which resulted in protracting the suit giving the impression to the Court that the plaintiff was not interested in early hearing of the matter. So far the plaintiff has examined witnesses, including himself and a statement is now made that the plaintiff does not want to examine any more witness and even proposed Chamber Summons which he was to file for Video Conference has not been filed and he does not want to take any steps and straightway the case can proceed for record the evidence of the defendants….
27. The plaintiffs have, thus, abandoned their right to bring the evidence of Dr.Greenberg on record. Thus, on the doctrine of waiver, the plaintiffs can also be non-suited.
28. Secondly, the plaintiffs have with open eyes closed their evidence. After evidence of the plaintiffs, defendants led their evidence to meet the case sought to be made out by the plaintiffs. Defendants also closed their case. Thereafter, the suit was posted for hearing. The plaintiffs themselves were blaming the Court for not deciding their suit with expeditious despatch. In the above view of the scenario, the notice motion taken out at belated stage also disentitles the plaintiffs to claim any relief, muchless the relief prayed for in the present notice of motion. The notice of motion is, thus, not bonafide and liable to be dismissed.
29. In the result, for the reasons recorded, notice of motion is rejected with no order as to costs.