Prior testimony under Section 33 is admissible when the adverse party had earlier cross-examination opportunity.

Section 33 of the Indian Evidence Act permits prior testimony from an earlier judicial proceeding when the witness is unavailable and the statutory conditions are met. The second proviso protects the party against whom that evidence was originally given, namely the party who had the right and opportunity to cross-examine the witness in that proceeding. A party who produced and examined the witness in the earlier case is not treated as the protected adverse party. On that construction, the prior evidence was admissible in the later proceeding, subject to proof and weight at trial, and the refusal to receive the testimony could not stand.

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Issues: Whether evidence recorded in an earlier judicial proceeding was admissible in the later proceeding under Section 33 of the Indian Evidence Act, and how the expression "adverse party" in the second proviso was to be understood.

Analysis: Section 33 permits use of evidence from a prior judicial proceeding when the witness is dead and the statutory conditions are satisfied. The second proviso is intended to protect the party against whom the evidence was given in the earlier proceeding, namely the party who had the right and opportunity to cross-examine the witness there. The proviso does not protect the party who produced and examined the witness in the earlier proceeding. If the construction adopted below were accepted, the party who called the witness could later rely on that evidence while denying the same benefit to the adverse party, which would defeat the purpose of the proviso.

Conclusion: The appellant was the adverse party in the earlier proceeding and had the right and opportunity to cross-examine the witness. The former evidence was therefore admissible in the later proceeding, subject to its proof and weight at trial.

Final Conclusion: The order refusing to receive the prior testimony could not stand, and the matter was directed to proceed with that evidence being marked in accordance with law.

Ratio Decidendi: For the second proviso to Section 33 of the Indian Evidence Act, the "adverse party" is the party against whom the evidence was adduced in the earlier proceeding and who had the right and opportunity to cross-examine the witness there.

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