SHRI. VITHOBA BABUSSO ADEL & Anr. v. SHRI. GOKULDAS BABUSO ADEL & Anr.

Heard the Counsel for the appellants and the respondents.

This is a second appeal filed by the plaintiff, who was unsuccessful in both the Courts below.

The plaintiffs had instituted the suit against his own brother alleging that the defendant, who is his brother, was a licencee.

The defendant contested the suit saying that he was not a licencee. He has been living in the suit house in his own right. He contended that the suit house was constructed by his father and, therefore, being heir of his father, he is also entitled to occupy the house.

The Trial Court found that the plaintiff had failed to prove that the occupation of the defendant, was permissive and it held that the house was constructed by the father and the defendant was living as heir of his father in the house and the parties were living in separate portions of the house as family arrangement.

The plaintiff preferred the appeal before the District Judge.

While the appeal was pending before the District Judge, the defendant moved an application for production of documents under Order 41 Rule 27 of C.P.C. The Document, the defendants sought to produce, was a deposition of the plaintiff himself, recorded in former suit. The learned Judge of the Appellate Court, allowed the production of the document. He, not only allowed the production of the document, but also examined the defendant as well as the plaintiff in his own Court. The learned Judge, thereafter, heard the arguments and decided the matter. He found that there was no substance in the appeal. The house was constructed by the father. There was admission on the part of the plaintiff in his previous statement that the house was constructed by the father and holding so, the learned Judge of the First Appellate Court, dismissed the appeal.

The plaintiff, therefore, preferred this second appeal.

The learned Counsel for the appellants, contended before me that the First Appellate Court should not have allowed production of the documents since the case did not fall in any of the clauses mentioned in Rule 27 of Order 41 of C.P.C. It appears from the copy of the deposition that it was a deposition recorded in the civil suit which was filed in the year 1970. It was very unlikely that the defendant may have the knowledge of this and the defendant had contended in the application that the defendant was not aware of the suit and the deposition given by the plaintiff in that suit. Since the defendant was not at all aware of such suit and such deposition has as given before the Court, the learned Judge found it as sufficient cause for the defendant not to have produce that document at the earlier stage. In any case, that was a previous statement of the plaintiff himself recorded in the former suit. In any case, such statement, which was given by the plaintiff himself on his own, could not be said to be causing any prejudice to him if it was produced even at the appellate stage. The Court also found that the document would be more helpful for arriving at just and proper conclusion.

The learned Counsel for the appellants submits before me that the Court should have taken into consideration Section 33 of Indian Evidence Act. With respect, it is to be said that Section 33 of Indian Evidence Act, has no application whatsoever in the present case, because the plaintiff is very much alive. It is only if the person giving the statement is dead, that the Court can resort to the provision of Section 33 of Indian Evidence Act. Here, the plaintiff is very much alive. The previous deposition of any witness can be used under Section 145 or Section 157 of the Indian Evidence Act. The document was produced by the defendant and naturally it could be said that the defendant wanted to make use of this deposition in the former suit for the purpose of contradiction. Every party has right to contradict the witness with his previous statement.