1989 PLP 1208 (CLC)

E.A. Nomani for Respondents. SAJJAD ALI SHAH, J.‑‑In this appeal is impugned order dated 29‑3‑1988, passed by learned Single Judge in a suit on the original side on application filed under section 35 of the Patents and Designs Act, 1911, whereby request made by defendant in the suit to cross examine assessor is refused. Under section 35 of the Act mentioned above, the Court is empowered on the request of the parties to the proceedings to call in aid an assessor specially qualified to try the case wholly or partially with his assistance. Reading of this provision clearly shows that the assessor so nominated is not a witness but enjoys status, which is on higher footing than witness as such he cannot be subjected to cross‑examination at the request of ore party. Mr. Wajihuddin Ahmed, counsel for the appellant /defendant in the suit was unable to satisfy us as to how his application before the learned Single Judge with request for cross‑examination of assessor was competent and maintain able. Learned single Judge has rightly observed in the order, which is impugned before us, that in section 35 of the Patents and Designs Act, 1911, it is not provided that .assessor shall be liable to cross examination. Furthermore, reference is also made to section 309 Cr.P.C. of India in which role is described to assessors in criminal trial. This role also clearly shows that assessor is not a witness but he has to assist the Court and would state his opinion on all the charges and further it is not permitted to cross‑examine him. Reference is made to the Indian Penal Code for the reason that previously in our judicial system we had like provisions for trials in criminal cases with the aid of jury and assessors, but now that system has been done away with as such relevant provisions do not now exist in our Criminal Procedure Code. Contention of Mr. Wajihuddin Ahmed, advocate is that opinion of assessor in any case is not higher than Expert Witness and his report is not an advice binding on the Court. or on parties and if there is any ambiguity in the report/opinion of assessor, the same can be resolved only if he is allowed to be cross‑examined. In support of the proposition stated by him, reliance is placed by him on the case of British Calanese, Ld. v. Courtaulds, Ld. reported in 52 R.P.C. 171 @

196. Relevant portion is reproduced hereunder:‑ "The area of the territory in which in cases of this kind an expert witness may legitimately move is not doubtful. He is entitled to give evidence as to the state of the art at any given time. He is entitled to explain the meaning of any technical terms used in the art. He is entitled to say whether in his opinion that which is described in the specification on a given hypothesis as to its meaning is capable of being carried into effect by a skilled worker. He is entitled to say what at a given time to him as skilled in the art a given piece of apparatus or a given sentence on any given hypothesis as to its meaning would have taught or suggested to him. He is entitled to say whether in his opinion a particular operation in connection with the art could be carried out and generally to give any explanation required as to facts of a scientific kind. He is not entitled to say nor is counsel entitled to ask him what the specification means, nor does the' question become any more admissible if it takes the form of asking him what it means to him as an engineer or as a chemist. Nor is he entitled to say whether any given step or alteration is obvious, that being a question for the Court. The perusal of reported case mentioned above indicates that in the relevant Act of that country, there is provision of examination of expert witness, whose duties and functions while being examined in evidence have been stated in the arguments of the counsel reproduced in the quote above, which are not the functions and duties of the assessor. In the Patents and Designs Act, 1911, which is applicable in our country, in section 35 thereof, there is clear cut provision for calling in aid an assessor and that provision does not require that assessor is liable to cross‑examination." ' Contention raised by the learned counsel for appellant before us is not acceptable for the following reasons:‑ (i) In the Oxford English Dictionary edited by James, A. H. Murray, Henry Bradley, W.A. Craigie, C.T. Onions, Volume‑I A‑B, meaning of assessor is given as an assistant‑judge, one who assesses taxes or one who sits beside; hence, one who shares another's position, rank, or dignity. One who sits as assistant or adviser to a Judge or Magistrate, specially a skilled assistant competent to advise on technical points of law, commercial usage, navigation, etc. In Halsbury's Laws of England, 4th Edition, Volume 37 Practice and Procedure at page 359, it is stated that "High Court may, if it thinks it expedient to do so, call in aid one or more assessors specially qualified and hear and dispose of the cause or matter wholly or partially with their assistance. An assessor is an expert, specially qualified in the subject‑matter of the cause or matter in which he is appointed. His function is to assist and advise the Court on the technical questions or issues arising. He is not generally permitted to take an active part in the proceedings, and thus he may not examine the witnesses, nor may he be examined or cross‑examined by the parties. Whatever advice or assistance the trial Judge may receive from an assessor, the sole responsibility for the ultimate decision in the case rests with the Judge, who is not bound to follow the assessor's advice. (ii) It is quite obvious that in section 35 of Patents and Designs Act, 1911, the legislature has used the word "assessor" on purpose and further language of the section is extremely clear that he is not to be examined as witness but would be called in aid by the Court to try the case wholly or partially with his assistance. If the intention was to use the services of a witness, this section would have been worded differently and specific provision would have been made for examination of that expert witness. (iii) Meaning of word assessor as stated in the Dictionary and supported by other books mentioned above clearly shows that role of assessor is different from witness and he, status‑wise is on higher pedestal than. a witness and is not subject to cross‑examination. ' (iv) In section 35 of the Act mentioned above, the Court is empowered to call the assessor on the request of all parties to the proceedings which means, that it has to be done with consent of the parties. In such circumstances consenting party cannot be allowed to turn round and say that he would cross examine the assessor. (v) Objections to the opinion of the assessor can be agitated at the time of arguments in the suit proceedings and can also be agitated during the hearing of appeal. For the facts and reasons mentioned above, we are of the view that assessor is not at par with witness and is not subject to cross‑examination, as such application filed before the learned Single Judge by the appellant to be allowed to cross‑examine the assessor was incompetent and non‑maintainable and was rightly and validly dismissed as such. We find no ground for interference, as such the impugned order is upheld and appeal is dismissed in limine. M . Y . H . /P‑84/ K Appeal dismissed.