1989 PLP 1138 (CLC)

This is a Suit for damages in the sum of Rs.40,00,000 (Rupees forty lacs) filed by the plaintiff against the defendants, her previous Doctors, on pleas that the Defendants were found wanting in the discharge of their duties and in providing due care to the plaintiff, while she was under their treatment.

2. In the Suit the plaintiff moved an application under section 30, read with Order 11, Rule 14, C.P.C. (C.M.A. 1283/88) pursuant to which she sought the production of the relevant Notes, maintained by the Defendants, relating to Plaintiff's treatment, while she was in the Defendant No.l, Hospital between 27‑4‑1987 to 5‑7‑1987. Mr. Sharaf Faridi, learned Counsel for the defendants did not object to such application,' in principle, but maintained that if the Plaintiff was armed with such Notes and, thereafter, the Medical Practitioner, who was presently treating her, was examined, adoption of such course, would provide an advantage to the Plaintiff to mould and fashion her cause by praying into Defendants' papers. Accordingly, while Mr. Faridi had no objection for the production of such Notes,. according to him, the appropriate time for such production could only be before the current Medical Consultant of the Plaintiff was examined: I agreed with the objection of Mr.Sharaf Faridi and directed that the application under section 30, read with Order 11, Rule 14, C.PI.C., would be granted but that the production of the relevant documents shall have to be made after the examination of the present Medical Consultant of the Plaintiff, if and when, such examination took place. As such C . M . A . 1283/88, aforesaid stands granted in the foregoing terms.

3. Plaintiff, however, through another application under Order 18, Rule 16, read with section 151, C.P.C. (C.M.A. 1281/88), sought, what technically is termed as an examination de bene esse, of one Mr. W.F.G. Muirhead Allwood, F.R.C.S., said to be the plaintiff's present Medical Consultant who, stationed and practising surgery in the United Kingdom, was stated to be prepared to come and depose in this Court in the context of the treatment that he had to dispense to the plaintiff for a period of 7 months, after she already had undergone treatment with the Defendants. The object of an examination, de bene esse, under Order 18, Rule 16, C.P.C., is, normally, to record the evidence of a witness, who on account of his or her imminent leaving the jurisdiction of the Court or other sufficient cause, is required to be examined out of turn and in advance of the evidence in the case, to be recorded in the ordinary course. The ground stated for the examination, de bene esse, in the instant case, was that the Consultant, in question, was especially prepared to come to Pakistan, which on account of his professional engagements, he may not be able to do, in the fullness of time, as he was a dedicated professional man of some eminence and his dedication to professionalism may not permit him to come to Pakistan for recording of evidence, as and when, this case becomes ripe for that purpose,

4. The application last mentioned was strongly opposed by Mr. Sharaf Faridi on the ground that the present was not a case where a witness was about to leave the jurisdiction of this Court nor had any ground for urgency been indicated in the aforesaid application, or for the matter of that, in the affidavit in support thereof, Mr. Sharaf Faridi further contended that this case was even not ripe for recording of evidence, the implication being, that the application for the examination, de bene esse, of Mr. Allwood, aforesaid, was premature . (Surgeons are not termed as doctors in U.K.).

5. In so far as the sufficiency of cause under Order 18, Rule 16, is concerned, it would seem that, in contentious matters, where the efficacy of the previous treatment is questioned, a professional man would more appropriately be in a position to give evidence in relation to the treatment which he has had to dispense to a person, if he is called upon to make the statement at the time his treatment is continuing or shortly following the cessation of such treatment. As in this case, the Plaintiff was undergoing treatment, such situation subsisted. Besides, the ground of the Surgeon, being probably unavailable in fullness of time, when this case was set for evidence, also, cannot be said to be altogether irrelevant.

6. However, the objection of Mr. Sharaf Faridi was, in a way, sustainable and he was quite right when he said that Affidavits of Documents would be relevant and should be filed before the witness was considered for being permitted to be examined in or outside the Curt and that would be all the more so as such Affidavit of Documents, in so far as the plaintiff was concerned, may contain documents which may be referred to or relied upon by the relevant witness, who was sought to be examined under Order 18, Rule 16, C.P.C. In point of fact, I could not agree more with such proposition as I am inclined to think that this is not all, because after the filing of the Affidavit of Documents, one or more of the parties, may require the actual examination of the documents in the Affidavit, as is contemplated by the relevant provisions in the Code of Civil Procedure. Such documents may then be had recourse to in cross‑examination.

7. As till then, no Affidavits of Documents were filed, in the above view of the matter, it was considered improper to allow this application as, at that stage, in doing so, the course of justice was more likely to be hampered than advanced. As such, till such time as the above‑said steps, as to the filing of Affidavits of Documents etc., and inspection thereof, if any, were taken a formal decision on this application was deferred, though the foregoing contentions were recorded and an observation that the application would be granted, in due course, on the above promises, was duly inserted in the Order dated 4‑12‑1988.

8. In the meantime, learned Counsel have submitted their respective Affidavits of Documents and the above said application (C.M.A. 1281/88) has come up for consideration. Besides, the case is also fixed for framing of Issues.

9. Now, I may not be misunderstood, in the recitals of this order, to imply that in every case, a Court called upon to record an examination, de bene esse, under Order 18, Rule 16, C.P.C., is to await the disposal of the matter of directions, which is how the filing of Affidavits of Documents, inspection etc. , is commonly described. Indeed, nothing is further than reading any such restriction in the language of Order 18, Rule 16, C.P.C., aforesaid, for under that provision an examination, de bene esse, can be ordered to be made B at any time, after the institution of the Suit, and indeed, if the exigencies of the case so require, even in anticipation of notice to the other side, but subject to all just exceptions. Furthermore, an examination of this kind is not restricted merely to the case of a witness likely to leave the jurisdiction of the Court and this provision can be resorted to in any other case where "sufficient cause" is shown. The language of this provision, where "other sufficient cause" "to the satisfaction of the Court" is contemplated does not appear to circumscribe such "sufficient cause" to be read Ejusdem Generis, as the rule of Ejusdem Generis applies only to those cases where there are more than one categorisations, preceding the general expression and it is then that the restriction comes into play and the genera words are restricted to the genus of the specifics, which precede them. Thus in Hood Barrs v. I.R.C. (1946) 2API.E.R. 768) it was held that specific words must apply to something which can be called a class or kind of objects and where this is lacking the rule cannot apply and in United Towns Electric Co. Ltd. v. Att. Gen. for Newfoundland ((1939) 1 APL.E.R. 423) it was said that the mention of a single specifics does not constitute a genus. "unless you can find a category", . said Falwell L.O., in Tillmans & Co. v. S.S. Knutsford ( (1908) 2 K . B . 385) "there is no room for the application of the Ejusdem Generis doctrine" . Indeed the Rule of Ejusdem Generis is only a rule of interpretation and not a rule of law. Besides, the present trend is to be circumspect in applying this doctrine and, if the context so permits, to lean in favour of according the ordinary and natural meanings to the general words which follow specifics.

10. In the instant provision namely, Order 18, Rule 16, C.P.C., the only specific matter spoken of is a witness's likelihood to leave the jurisdiction of the Court and such a single specific 'category cannot, in principle, control the subsequent general words. The doctrine of Ejusdem Generis thus is not attracted in the construction of sub‑rule (1) of rule 16 of Order XVII1, C.P.C. I am, therefore, of the view that in every case where the justice of the cause So l requires and sufficient grounds are disclosed, an examination de bene l esse, can be ordered. For instance, in this case, it is a matter of I the witness's arriving in the area of jurisdiction and, thereafter, leaving it in the ordinary course, for following his professional pursuits, together with other factors dealt with above, and such a' case, in my view, would be covered by the expression "other sufficient' cause" in the provision. Other examples, can be of a witness at such a stage of ailment or of advanced age, where it may be seriously apprehended that he may not live to see the case to go to trial. Such a witness, would include the Plaintiff or the Defendant himself, subject to such or similar disabilities. Other instances, in the circumstances of each individual case, may be multiplied and, as I have observed earlier, all that is required to be seen is whether the situation sufficiently contingent to warrant the examination, de bene esse, in advance of the trial and for that purpose there is no restriction as to time and the remedy can be resorted to at any time after the institution of a Suit, provided, always, that the justice and equities in a given case so warrant.

11. Accordingly, this application is granted. As to the timing of the examination, de bene esse, of Mr. Allwood, F.R.C.S., aforesaid, it is agreed between the learned counsel that the same shall be conducted in August, 1989, on, the reopening of this Court, after summer vacations but before he is so examined, learned counsel for the Plaintiff shall supply to the learned counsel for the Defendants photostat copies. of the documents on which reliance may be made in the examination, de bene esse. This will be done two weeks in advance of such examination. In conclusion, in consonance with law, it may be observed that such examination, de bene esse, will affect neither the order in which the witnesses are to be examined in this case, nor will it operate to undermine the rules of burden of proof, as are applicable, to the .controversies involved herein.

12. As issues in the case have not been framed, but Affidavits of Documents have been filed, the matter will continue to be placed for framing of issues in August, 1989, when this case is laid up for the abovesaid purpose. In the foregoing terms, the application under Order 18, Rule 16, read with section 151, C.P.C., granted as above, stands disposed of. A.A. /R‑79/ K . Application granted.