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Madras High Court
Sri Raja Inugunti Prakasa … vs Yeranki Peda Venkata Rao on 13 February, 1913
Equivalent citations: (1913) 25 MLJ 360


1. This is an appeal against the order of the District Court of Rajahmundry reversing a decree of the Subordinate Judge of Cocanada and remanding the suit for fresh trial. The Subordinate Judge had disposed of the suit on the merits but solely on evidence recorded by the Munsif’s Court of Peddapur. This suit was first instituted and tried in the latter Court, but its decree was reversed on appeal on the ground that the pecuniary value of the suit was beyond the jurisdiction of a Munsif’s Court and the plaint was returned for presentation to the proper court. The plaint was subsequently re-presented in the Subordinate Court. The parties presented a statement at the trial of the suit consenting to the evidence recorded at the former trial by the Peddapur Munsif’s Court being treated as evidence in the suit and dispensing with any further evidence. The District Judge held that notwithstanding the consent of the parties the Subordinate Court’s procedure in acting on the evidence recorded in the Peddapur Court was illegal. He was of opinion that as all the evidence in the case was illegally admitted, the suit had virtually not been tried on the merits and must therefore be remanded for fresh trial. The contention of the appellants in this appeal is that the evidence in question was not illegally admitted by the Subordinate Judge; and that the order of remand cannot therefore be upheld. It is argued that as there was no objection raised on the admission of the evidence on the ground of irrelevancy, as to which see A. B. Miller v. Bulu Madho Dass (1896) I.L.R. 19 A. 76 at 92 (P.C.) and the objection raised in the Court of appeal related purely to the manner in which relevant evidence should be brought on the record of the suit, the consent of both parties disentitled the respondent to any objection to it in the appellate Court. The District Judge, while apparently of opinion that irregularities in the mode of taking evidence might be cured by the consent of parties, considered that this principle should not apply to the present case, as the Munsif of Peddapur, who recorded the evidence, had no jurisdiction to try the suit and the proceedings before him were pronounced to be coram non judice On appeal we are of opinion that the distinction drawn by him is not well founded. In Maharajah Jugutender Bunwaree v. Din Dayal Chatter jee (1864) 1 W.R.C. Rulings 310 and Lakshman Govind v. Amrit Gopal (1900) I.L.R. 24 B. 591 statements made by witnesses in a former suit were held to be admissible with the consent of the parties. In Syed Mahomed v. Oomdah Khartum (1869) 13 W.R. 184 deposition not taken before the Judge who completed the trial were admitted though there was no legislative provision allowing this to be done. See also Naranbhai Vrigbhukandas v. Naroshanker Chandra Shankar (1167) 4 B.H.C.R.A.C.J. 98 and Jadhu Rai v. Kanizak Husain (1886) I.L.R. 8 A. 576 at 596. In Sresnath Roy v. Gobuck (1871) 15 W.R. 348 evidence given in a suit to which the person consenting was not a party and had then no opportunity to test by cross-examination was held to be rightly admitted. In Ramaya bin Subaya v. Devappa Ganapaya (1905) I.L.R. 30 B. 109 it was held that consent made evidence, which might be recorded illegally or without jurisdiction by the trying judge at the disputed locality admissible. The ratio decidendi in all these cases was this-the facts admitted in evidence being themselves relevant provisions of law intended to test the credibility of witnesses or to enable the trying judge to make the test himself are not of such an important character that parties cannot waive the benefit of those provisions. They are not rules of public policy which the parties cannot waive. See 13 American Cyclopaedia of Law and Procedure p. 1014. An appellate court is called upon to decide facts on evidence not taken before itself. The Legislature has recognised several exceptions to the rule requiring the oral evidence in a case to be taken before the trying judge. This requisite is dispensed with, in cases where a suit is transferred from one court to another and where there is a change of judge in the trying court owing to death, transfer or other cause. See Order 18 Rule 4 Civil Procedure Code. We do not think that the circumstance that the appellate Court in the previous suit held that the Munsif who recorded the evidence had no jurisdiction to try the suit is material. That does not affect the validity of the consent of the parties which is the reason for the admission of evidence not recorded in the suit. It is unnecessary to express an opinion on the question whether in cases falling under Section 33 of the Evidence Act evidence recorded by a court can be regarded as not given in a judicial proceeding on the mere ground that the decree of the Court was subsequently set aside for defect of jurisdiction over the causes although In re Rami Reddi and Seshu Beddi (1881) I.L.R. 3 M. 48 is an authority against the admission of such evidence in subsequent proceedings between the parties. We hold that the Subordinate Judge was justified in acting on the evidence recorded in the previous suit, set aside the order of the District Judge and remand the appeal for fresh disposal according to law. The costs of this appeal will abide the result.

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