APHC010226312024 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3311] TUESDAY ,THE TWENTY FIRST DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE MS JUSTICE B S BHANUMATHI CIVIL REVISION PETITION NO: 1132/2024 Between: Thati Ramarao and Others ...PETITIONERS(S) AND Kataru Gangamma and Others ...RESPONDENT(S) Counsel for the Petitioners(S): 1. T V SRI DEVI Counsel for the Respondent(S): 1. GHANTA SRIDHAR The Court made the following: 2 CRP.No.1132 of 2024 ORDER: This revision petition is filed under Article 227 of Constitution of India against the order dated 04.04.2024 dismissing I.A.No.191 of 2024 in O.S.No.38 of 2016 filed under Section 151 C.P.C. on the file of the Court of the Additional Civil Judge (Senior Division), Narasaraopet to mark the document i.e., deposition of deceased Seetharavamma adduced by her in O.S.No.131 of 2008. 02. The learned counsel for the petitioners submitted that though the evidence of a dead person is admissible in evidence under Section 33 of the Evidence Act, 1872, the trial Court erroneously dismissed the petition observing that the petitioners failed to prove the ingredients of Section 33 of the Evidence Act. In this regard, she further submitted that the petitioners were parties to the suit in O.S.No.131 of 2008 and the respondents/plaintiffs are the legal representatives of the plaintiff in that suit and therefore, the necessary ingredient of Section 33 of the Evidence Act was established, yet the petition was dismissed on that ground. 03. The learned counsel for the respondents/plaintiffs submitted that the objection as to admissibility can be decided at the time of tendering the documents in addition to witnesses and therefore, the question may be left open and decided at that time and further that the delay in filing the documents was not explained. 04. Though the petition was filed under Section 151 C.P.C., since this documentary evidence was not filed along with the written statement, a proper course open for the petitioners/defendants was to seek permission of the Court to file document under Order VIII, Rule 1(4) of 3 CRP.No.1132 of 2024 C.P.C. by showing the reason for not being able to file the document along with the written statement. 05. The relevancy of the evidence sought to be produced is covered by Section 33 of the Evidence Act. No objection was raised at any point of time by anyone about the provision of law and therefore, now this Court cannot examine the aspect of the ingredients required to seek permission under Order VIII, Rule 1(4) C.P.C. 06. Since the contest from both sides is on the basis of Section 33 of the Evidence Act, the enquiry is limited to that extent only. Section 33 of the Evidence Act reads as follows: “Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.– –Evidence given by a witness in a judicial proceeding, or before any person authorised 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 found, 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.” 4 CRP.No.1132 of 2024 07. In the present case, since the revision petitioners who are the defendants in O.S.No.38 of 2016, filed O.S.No.131 of 2008 against Seetharavamma through her name the respondents/plaintiffs are claiming title to the property by virtue of the disputed will executed by Seetharavamma, the necessary ingredient required under Section 33 of the Act has been duly fulfilled. However, under the erroneous impression that the plaintiffs in the present suit, being not parties to the previous suit in O.S.No.131 of 2008, the trial Court dismissed the petition. In view of the purpose for which the revision petitioners seek to file the evidence of deceased Seetharavamma in the present suit has relevance to the issue involved in the suit in respect of will in question, the petition ought to have been allowed by the trial Court. 08. As such, with above observations, this revision petition is allowed by setting aside the order dated 04.04.2024 in I.A.No.191 of 2024 and the petition therein is allowed. There shall be no order as to costs. Interim orders granted earlier, if any, shall stand vacated. Pending miscellaneous applications, if any, shall stand closed. ________________________ JUSTICE B.S.BHANUMATHI Date: 21.01.2025 NSM 5 CRP.No.1132 of 2024 103 HON’BLE Ms. JUSTICE B.S.BHANUMATHI CIVIL REVISION PETITION NO: 1132/2024 Date: 21.01.2025 NSM