1986 PLP 1292 (CLC)

Shantibai v. Motiram Sitaram A I R 1946 Sind 30 and Ram Singh v. Ram Bahadur Singh A I R 1934 Pat. 60 ref. Imtiaz Lari for Plaintiff. Muhammad Naeern for defendants 1 and

3. M.H. Kazmi for Defendants 2 and

4. This application under section 151, C.P.C. is filed on behalf of defendants 2 and 4 with a request that one of the witnesses of defendants 1 and 3 who has been ordered to be examined on commission on the application of defendants 1 and 3 may be allowed to be cross‑examined viva voce by the counsel for defendants 2 and 4 at their own cost at the time of his examination on interrogatories. The application is opposed by defendants 1 and 3 while plaintiff is not opposing the application. The following facts may be stated here: Defendants, 1 and 3 made an application for examination of one of their witnesses who is resident of a foreign country on commission. The application was opposed by defendants 2 and 4 who contended that the witnesses cannot be effectively cross‑examined on cross interrogatories. My learned brother Justice K . A . Ghani, on 19‑2‑1984 allowed the application for examination of the witness on commission on interrogatories and defendants 2 and 4 were directed to file cross -interrogatories. Defendants 2 and 4 preferred an Inter‑Court appeal against the order of the learned Single Judge, dated 19‑2‑1984 but it was dismissed and the order of learned Single Judge, dated 19‑2‑1984 is maintained. It appears that at the time of dismissal of the appeal a request was made to the learned Judges of the Division Bench on behalf of defendants 2 and 4 to make an observation in the order to the effect that if defendants 2 and 4 wanted to be represented through counsel at the time of examination of witness they may move the learned Single Judge. This request of defendants 2 and 4 was disposed of by the learned Division Bench with the following observations:‑

"After the order was dictated in Court, Mr. M . H . Kazmi stated that we should make an observation that, in case the appellant wishes to be represented by counsel at the time of examination of the witness, the learned Single Judge may grant such permission. We are not inclined to make any observation one way or the other, but if ever such a request is made, the same shall be considered by the learned Single Judge in a manner that may advance justice."

2. After dismissal of the appeal by the Division Bench as aforesaid when this matter came up before me defendants 2 and 4 filed the above application under section 151, C.P.C. with the prayer that they may be allowed to be represented by a counsel at the time of examination of witness on commission and cross‑examine the witness viva voce instead of cross‑examining the witness on cross‑interrogatories, at their on cost. This application is very strongly opposed by the learned counsel for defendants 1 and 3 who contends that prayer for cross‑examination viva voce has been rejected by the learned Single Judge and the Divisions Bench by order, dated 19‑2‑1984 and 9th September, 1984, respectively, and as such the same cannot be granted by this Court. In this connection the learned counsel referred to the pleadings of the parties and the two orders mentioned above. It may be mentioned here that the learned Single Judge granted the application of defendants 1 and 3 for examination of witness on commission through interrogatories on the considerations that the attendance of the witness who is resident abroad cannot be enforced, his evidence is necessary to cover the issue raised in the suit and that the cost involved in recording evidence of the witness on commission viva voce would be disproportionate to the claim in the suit. It is quite clear from the order, dated 19‑2‑1984 that at the time of passing of the above order no prayer was made to the Court by defendants 2 and 4 that they may be allowed to be represented by a counsel at the time of examination of the witness on commission at their own cost and put questions to him in cross‑examination. Therefore, the question of declining such a request by the Court expressly or impliedly did not arise. Similarly, before the Division Bench also defendants 2 and 4 contended that as it will not be possible to effectively cross‑examine the witness on cross‑interrogatories his examination on commission viva voce at the cost of the party proposing to examine him may be ordered but it was not accepted. No doubt in the prayer clause of the appeal of defendants 2 and 4 there was a request to allow cross‑examination of the witness viva voce but this is to be understood in the light of the contentions raised before' the Division Bench. There is nothing in the order of Division Bench to show that any request was made by defendants 2 and 4 to allow them representation through counsel at their own cost for cross‑examination of witness at the time of his examination on commission. In fact the order reproduced above which was passed by the learned Judges of Division Bench after dismissal of appeal of defendants 2 and 4 clearly points out that this aspect of the case ‑was left open to be dealt with by the learned Single Judge, if such request was made to him. It may also be mentioned that the question whether effective cross‑examination of witness by defendants 2 and 4 was possible or not through cross‑interrogatories could only be decided after cross‑interrogatories were submitted by defendants 2 and

4. It is an admitted position that no cross‑interrogatories were filed in the case by defendants 2 and 4 at the time the appeal was heard and decided by the Division Bench and as such it could not be said that the learned Judge of Division Bench rejected this request of defendants 2 and 4 in this behalf. After the case was decided by the Division Bench I directed the learned counsel for defendants 2 and 4 to file cross‑interrogatories in the case which has since been filed. I have carefully gone through the interrogatories and cross‑interrogatories submitted by the parties and I am of the view from question No. 10 onwards of the interrogatories are such that their answers by the witness at this stage cannot be foreseen. Even otherwise if the answer to these interrogatories could be anticipated, it is rightly urged by the learned counsel for defendants 2 and 4 that the right of cross -examination through cross‑interrogatories could not be effectively exercised in the present case as presently it is impossible for him to frame further cross‑interrogatories on the basis of anticipated reply of witness. It is not denied by the learned counsel for defendants 1 and 3 that answers of the witness in reply to question No. 10 onwards one interrogatories will have a material bearing on the main controversy in the case. In these circumstances, the right claimed by defendants 2 and 4 to cross‑examine the witness at their own expenses cannot be lightly denied. It must be born in mind that the right to cross‑examine a witness by a party is a very valuable right which cannot be taken away or defeated by any procedural rule. No rule or law was cited at the bar to support the contention that where an order is made by the Court for examination of a witness on interrogatories the right of cross- examination viva voce is extinguished or lost. The fact that the rules framed by this Court on original side provide for filing of cross interrogatories by the party who has the right to cross‑examine the witness, ordered to be examined on commission, is only a rule of procedure intended to provide a concession or facility to that party but this certainly cannot take away the right of cross‑examination if he chooses to avail the same. Learned counsel for defendants 1 and 3 has relied on the case of Shantibai v. Motiram Sitaram A I R 1946 Sind 30 to contend that the right of cross‑examination viva voce is neither vested right nor it could be exercised in all cases by the defendants. The observations in the above‑cited case do not show that the questions raised in the present case were considered by the Court. Learned counsel for defendants 2 and 4 on the other hand relied on the case of Ram Singh v. Ram Bahadur Singh A I R 1934 Pat.

60. In that case the observations of the learned Judge is to the effect that the right of cross‑examination of expert witness cannot be denied to a person in the event of his examination on commission. Learned counsel for defendants 1 and 3 distinguished this case and submitted that in that case the Court considered the question of additional evidence at appellate stage. Be that as it may, the procedure relating to issues and execution of commission is regulated under Order XXVI, C.P.C. The provision relevant to present case are contained in rules 5 to 8 of Order XXVI. A careful examination of these rules will show that the right of cross- examination of a party is not at all affected by the rules. There is nothing in the above rules to show that where a witness has been ordered to be examined on interrogatories the party who has a right of cross‑examination can only file cross‑interrogatories and cannot avail the right of cross‑examination viva voce. It is no doubt open to a Court while granting an application of a party for examination of a witness on commission on interrogatories to decline the opportunity of cross‑.examination viva voce to the other party on the cost of first party keeping in view the circumstances of the case, but if Me other party claims the right of cross‑examination viva voce and offer to bear the expenses and other formalities at his own cost in this behalf, the right of cross‑examination cannot be refused merely because the Court has ordered for examination of witness on commission or interrogatories, in the absence of any statutory bar. In the present case the defendants 2 and 4 initially prayed for cross‑examination of witness viva voce at the cost of defendants 1 and 3 but after the order of Division Bench they have now made a prayer for cross‑examination of witness viva voce at this own cost. Keeping in view the fact that the prayer for cross‑examination of witness is not unjustified in the circumstances of the case and the defendants 2 and 4 are prepared to bear the cost and expenses incidental thereto, I do not find any prejudice to defendants 1 and .3 if .the application on defendants 2 and 4 is allowed.

4. For the aforesaid reasons I allow the application. The defendants Nos. 2 to 4 are at liberty to make arrangement for their representation at Poland at the time of examination of witness on commission at their own cost and they will be at liberty to cross‑examine the witness vive voce after the witness is examined on interrogatories. A.A. Application allowed.