Authored By : Richard Garth, Beverley

Richard Garth, C.J. and Beverley, J.

1. Gobind being dead, his evidence in the former suit wouldbe admissible in this suit under Section 33 of the Evidence Act, provided (1)that the former suit was between the same parties or their representatives ininterest; (2) that the adverse party in the former suit had the right andopportunity to cross-examine; (3) that the questions in issue weresubstantially the same in both suits.

2. We think that the first of these conditions was notsufficiently fulfilled. The Subordinate Judge says that the deposition is notadmissible, because Gobind was not a party to the former suit. What theSubordinate Judge means to say is probably this: Gobinds son Eshan, whoseinterest, as well as that of Gobind, has been purchased by the plaintiff in thepresent suit, was the ostensible party on the record in the former suit; butthe finding of the Court was that he had at that time no interest in thesubject-matter of the suit, the real party interested being Gobind. Gobind,therefore, and not Eshan, was the representative in interest of the presentplaintiff; and if he had been a party to the former suit, his deposition wouldno doubt have been admissible. But he was no party to that suit, and the factthat Eshan subsequently acquired an interest in the property will not avail tomake the evidence taken in that suit admissible in the present suit. We thinkthat, in order to satisfy the requirements of Section 33 of the Evidence Act,the two suits must be brought by or against the same parties or theirrepresentatives in interest at the time when the suits are proceeding, and theevidence is given.

3. The appeal must, therefore, be dismissed with costs.

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Sitanath Dass vs. Mohesh Chunder Chuckerbati and Ors.(05.03.1886 - CALHC)