1. The decision in Ponnusami Pillai v. Singaram Pillai I.L.R(1918) M. 781 that the consent of the parties to a suit cannot make admissible the evidence given in a previous judicial proceeding between the same parties where some of the issues were the same was based mainly on the provisions of Sections 165 and 33 of the Indian Evidence, Act. Section 165, which enables the presiding Judge to ask any questions 'about any fact relevant or irrelevant' contains a proviso ' that the judgment must be based on facts declared by this Act to be relevant and duly proved'. The effect of this section merely is that, while the presiding Judge in the course of the trial may ask questions about irrelevant facts including under the scheme of the Act statements made to the witness by other parties or hearsay, he must base his judgment upon facts which are relevant to the issues and are duly proved. It does not throw any light on the question what facts should be considered to be duly proved. Section 33, which occurs under the heading ' statements by persons who cannot be called as witnesses ' provides that ' evidence given by a witness in a judicial proceeding is relevant for the purpose of proving in a subsequent judicial proceeding the truth of tire facts which it states ' in the circumstances set out in the rest of the section. As pointed out in Amir Ali and Woodroffe's Commentaries the word ' relevant' as used in the Act, is equivalent to 'having probative force' and the effect of the section is to make the evidence admissible in the circumstances specified independently of the consent of the parties. Though differently worded this section has really much the same effect as Order 37, Rule 3 of the Rules of the Supreme Court which enables the Court to order evidence taken in another case to be read. This is in accordance with the old Chancery practice which is stated as follows in Daniel's Chancery Practice Ch. XII Section 2(1) p. 515 'Evidence taken in another Court may be read in a cause on production of a copy of the pleadings if the two suits are between the same parties or their privies, and the issue is the same; and such depositions are admissible in' evidence in the former cause,' citing Williams v. Williams 12 W.R. 663. Such orders are only made in cases similar to those specified in Section 33, but if the Court couki make such depositions admissible even without the consent of parties, the case for admitting them by consent is even stronger. Rules 1 and 18 of Order 37, which require the examination of the witnesses to be viva voce in open Court, except in cases where proof is to be made by affidavit or evidence taken on commission to be admitted, and provide that these two modes of proof shall not be adopted except in the cases specified, both contain a saving clause enabling it to be done in any case by the consent of parties. This is a recognition of the principle that such matters may properly be regulated by the consent of the parties.
2. The admission by consent of evidence taken in other cases raising the same issues is of daily occurrence in England and must now be taken to be the settled practice which is the law of the Court. If there is not much direct authority on the point, that would appear to be because it has never been seriously questioned. In Conradi v. Conradi P. and D. 615 a divorce suit in which a new trial had been ordered, the question arose whether according to the practice of that Court the Judge's notes of the deposition of a witness at the earlier trial who had since died could be read at the second trial except by consent. Lord Penzance, who had been a Common Law Judge, observed that he had known of its having been., made a condition of granting a new trial that the Judge's notes of the previous trial should be admitted. No such order could have been made except on the footing that the consent of the parties could render the evidence admissible.
3. There is in my opinion no sufficient reason for holding that a different rule is applicable in India where the practice in cases such as the present is scarcely less well established than in England, and is of such obvious convenience that very strong grounds should be shown for holding it inadmissible. The Indian Evidence Act, it is true, contains no express recognition of the practice, but, neither, so far as I can see, is any such express recognition to be found in Taylor on Evidence, The Indian statute and the English treaties both confine themselves to stating the well established rules of evidence, and do not deal with the question how far the strict requirements of the established rules may be departed from by consent in cases such as this. Far from the practice being opposed to public policy, evidence not taken before the Judge actually deciding the case has been made admissible in India by statute, as pointed out by Sundara Ayyar, J., in Sri Rajah Prakasa Rayanim Garu v. Venhata Rao I.L.R(1912) Mad. 160 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. In these circumstances the practice seems to be in accordance with the principle embodied in the maxim Unusquisque potest renuntiare juri pro se introduceto, seeing that it is not only not opposed to public policy but entirely in accordance with it. The trend of the Indian decisions which are referred to by Sundara Ayyar, J., is also in its favour, and the judgment of Sir Lawrence Jenkins, C.J., in Ramaya Bin Subaya v. Devappa Ganpaya I.L.R. (1905) 30 Bom. 109 is to the same effect. Ponnuswami Pillai v. Singaram Pillai I.L.R(1918) Mad. 781 must be over ruled and the question answered in the affirmative.
Coutts Trotter, J.
4. It is clear that in this country neither an omission by an advocate to object to giving of irrelevant and inadmissible evidence nor the failure of the tribunal to exclude it of its own motion will validate a decree based on material which the Evidence Act declares to be inherently and in substance irrelevant to the issue. A wholly different question arises, where objection is not as to the nature and quality of the evidence in itself but merely as to the mode of proof put forward. I agree that consent can cure what would otherwise he a defective method of letting in evidence in its substance and contest relevant and germane to the issues; and that to hold otherwise would not only be contrary to the established practice both in England and in this country but would prohibit litigants from adopting a method leading to the saving of time and expense and in itself neither inconvenient nor unjust. I am of opinion, that Sri Rajah Prakasarayanim Garu v. Venkata Rao I.L.R(1812) Mad 160 was rightly decided and that Ponnuswami Pillai v. Singaram Pillai I.L.R(1918) Mad. 781 is contrary both to principle and practice.
5. This reference raises the question of the correctness of the ruling in Ponnusawmy Pillay v. Singaram Pillay I.L.R(1918) Mad. 781. The learned Judges who decided that case held on a constructions of Sections 33 and 165 of the Indian Evidence Act that in spite of the consent of parties the evidence given by a witness in a former proceeding was not admissible in a later proceeding between the same parties unless the 'conditions prescribed by Section 33 of the Indian Evidence Act were found by the trial Judge to exist.' In arriving at this conclusion they expressly declined to follow an earlier ruling of this Court in Sri Rajah Prakasarayanim Garu v. Venkata Rao I.L.R.(1812) Mad 160. With all respect to the learned Judges it seems to me that their view cannot be supported.
6. As pointed out in Krishna Reddy v. Sundara Reddy (1914) M.W.N. 931 the question involved here is one of mode of proof of relevant facts rather than one of the relevancy of the facts themselves. The former depositions were sought to be admitted as proof of facts relevant to the present case spoken to by the witnesses then. The primary rule to prove relevant facts by the evidence of witnesses is to call them before the trial Judge and examine them viva voce in the manner stated in Chapter 10 of the Evidence Act. But that rule has several recognised exceptions such as the examination of witnesses on commission, or the use of affidavits as evidence, the use of evidence taken by one Judge by another as in cases where a suit is transferred from one Court to another or when there is a change of Judge in the trying Court. One of such exceptions recognised by law is the method of filing the record of evidence of a witness taken in a former Judicial proceeding. This is allowed by Section 33 of the Evidence Act subject, no doubt to certain restrictions and conditions. These limitations seem from their nature to be intended to protect the opposing party from being prejudiced by such admission as it may interfere with his right of cross-examination and of testing the credibility of the witness. I quite agree that if such evidence is to be admitted against the opposition of a party the Judge should be satisfied that the conditions and restrictions imposed by Section 33 are fully complied with; but I can see no difficulty in holding that a party may waive the benefit of those provisions which are intended for his benefit at any rate in a civil suit where no question of public policy is involved whatever the position may be in a criminal trial. A civil suit is a proceeding inter parties and as parties can by consent settle its final result by having a consent decree passed, there is no reason why they should not be permitted to consent to treat something as evidence of a relevant fact which it may not otherwise be; and when the trial Judge has admitted and acted upon such evidence it is not only proper evidence but the parties ought not to be allowed to object to its admissibility in appeal.
7. This view is in accordance with rulings of our Court in Angammal v. Aslami Sahib I.L.R. (1913) Mad. 710 and Krishna Reddi v. Sundara Reddi (1914) M.W.N. 931 and it has also the high authority of Sir Lawrence Jenkins in its favour in Ramaya Bin Subaya v. Devappa Ganpaya I.L.R (1905) 30. Bom. 109. That learned Judge says 'parties, if so minded may ordinarily agree that evidence shall be taken in a particular way and it is common experience that parties do agree that evidence in one suit shall be treated as evidence in another. That is not a matter which can be said to affect the jurisdiction of the Court. It is merely that parties allow certain-materials to be used as evidence which apart from their consent cannot be so used.'
8. It is also in accordance with the established practice both here and in England and we should not lightly depart from such practice as it tends to the saving of time and expense. Again, where such evidence has been admitted and acted upon by the trying Judge without objection it is clear from Lakshman Govind v. Amrit Gopal I.L.R. (1900) , Bom 591 and the authorities cited in it that the Appellate Court should not allow any objection to be taken to the procedure.
9. The learned Judges in the 41 Madras Case consider that what they call 'the stringent provisions' of. Section 165 of the evidence Act, that is, the first proviso in it, prevent the views above stated from being taken. I agree with the learned Chief Justice that that section has really no bearing on the question before us.
10. The section is enacted to enable the presiding Judge to ask any question he pleases whether relevant or irrelevant and to order the production of any document or thing which he wishes to have. The provision relied on in 41 Madras is the proviso to that section; and as such it has no general application but merely prohibits the Judge from basing his judgment on the facts so obtained by him unless they are relevant and duly proved. It comes into operation only when the Judge has acted under the section.
11. I therefore agree that our answer to the reference must be in the affirmative and that the case in 41 Mad. 731 must be overruled.