P L D 2007 Karachi 105 (PLP)

FAISAL ARAB, J.

The plaintiff company has moved an application i.e. C.M.A. No.1403 of 2005 seeking appointment of Commission to record evidence of its witness namely Mr. Jim Dawkins, the President and chief Executive Officer of the plaintiff company on interrogatories. In this regard a list of 33 questions has been appended with the application which the plaintiff seek to be answered by the plaintiff's witness and such answers are then sought to be treated as plaintiff's evidence. The application is opposed by the defendant on the ground that the same is not maintainable in law. Defendant has also objected to the grant of application on the ground that as the plaintiff had the option to file proceedings either in the United States or Pakistan and that having chosen to file the suit in Pakistan, therefore, plaintiff's witness has to appear before this Court to adduce evidence. It is surprising to note that the plaintiff has suggested questions to be answered by its own witness. The very word interrogate' suggests a process of questioning with the view to gather information. This obviously can only be achieved by questioning someone else as one cannot interrogate itself to gather information. One already knows what he knows. After answering its own questions, these answers are then sought by the plaintiff to be treated as plaintiff's evidence in the case. Thus plaintiff's application under consideration is based on the premise that answers to plaintiff's own questions be also treated as plaintiff's evidence in the matter. In other words it means that plaintiff's witnesses after answering its own suggested questions shall not be submitting to defendant's cross-examination. On the face of it, treating plaintiff's answers as plaintiff's evidence to the questions suggested by the plaintiff itself seems to be quite absurd and alien to the procedure of evidence. Such can never be the object of the provisions relating to interrogatories as provided in Order XI, C.P.C. I have not been able to trace a single reported case that may have touched upon this aspect i.e. treating interrogatories as a substitute for recording evidence. Having found the question in hand as res Integra, I shall proceed to examine the nature and scope of the provisions relating to interrogatories as contained in Order XI, Rule 1, C.P.C. Order XI, rule 1, C.P.C. enables either party to a suit to seek leave of the Court to serve interrogatories on the opposing party for it to be answered. In rule 1 of Order XI it is mentioned that interrogatories are to be delivered to the opposite-party for examination so that they are answered by it. The word "Examination" in rule 1 of Order XI does not mean `examination of a witness' as is done in examination-in-chief but it mean perusal of interrogatories by the opposing party which is called upon to answer them and deliver the answers in writing to the party seeking interrogatories. The need to deliver interrogatories under Order XI, Rule 1 may arise for the reason that the plaint or the written statement may not disclose the actual nature of the case and the replies through interrogatories become necessary to particularize and identify the real nature and scope of the real controversy involved in the case. Thus need to serve interrogatories arise where the pleadings of either of the party are vague or deficient in material particulars. Such vague or deficient pleadings always give rise to certain questions, answers to which are considered necessary for removing ambiguities and achieving clarity in order to facilitate just and expeditious conclusion of the trial. Thus the provisions of Order XI, rule 1, C.P.C. entitle a party to seek answers from his opposing party with a view to ascertain what case the party seeking answers has to meet in evidence. Thus answers to interrogatories help in removing vagueness of the pleadings of an adversary and bring to the fore the real and pertinent issues on which evidence is to be adduced. It also saves time and expense as it prevents unnecessary and irrelevant evidence from being brought on record. The information thus collected through serving interrogatories on the opposite-party is then used to support one's case or to demolish the case of the opposing party. Interrogatories are however not intended to dispense with the requirement of recording evidence of a party in the matter. Whenever a Court allows a party to deliver interrogatories on the opposing party it does not mean that the obligation to adduce evidence can be dispensed with. In any case the party answering interrogatories has to adduce evidence in support of its case. The interrogatories under the provisions of Order XI, C.P.C. are also not meant to be answered by the party which has itself suggested the questions. It is specifically mentioned in Order XI, Rule 1 that interrogatories are to be delivered to the "Opposite parties". No principle of law allows a party to use its own answers as a substitute to the evidence which it is required to adduce at the trial. If a party is allowed to answer its own suggested questions and use them as its evidence then it would mean that ones own answers given to ones own questions have to be treated as complete discharge of the burden to adduce evidence in the matter. Such an unacceptable interpretation would totally absolve a party from submitting itself to the test of cross-examination by the opposite party. Law cannot envisage such an absurdity that would change the rules of evidence. It may be pointed out that even deposition taken in examination -in-chief looses its evidentiary value if it has not passed the test of cross-examination. In order for a deposition given in examination-in-chief to gain evidentiary value, the deponent has to submit himself to cross-examination by the opposing party. Neither any principle of law allows a party to answer the questions which it has itself suggested nor allows a party to treat answers given to its own questions as evidence and that too without passing the test of cross-examination. As discussed above, either of the parties has the right to seek leave of the Court to deliver interrogatories on the opposing party but no such permission could be granted where a party itself has suggested questions to be replied by it and then such replies are used as a substitute to adduce evidence in the matter. Interrogatories cannot be suggested by a party to itself. Thus it is quite clear that interrogatories are meant to be served on the opposing party and not on the party which has itself suggested the questions. Strangely enough, all answers to the 33 questions suggested by the plaintiff are already contained in the plaint which too is also on oath. Thus no useful purpose is being achieved by answering questions which already stand answered in the plaint. In any case, for a plea to become part of evidence it has to go through the test of cross-examination and this is exactly what is being avoided by the plaintiff in the present case by seeking answers to so-called interrogatories to be treated as its evidence. Even where interrogatories are properly served i.e. delivered by one party to be answered by the opposing party, this by itself does not absolve the requirement of adducing evidence in the matter. Where interrogatories have been sought and answered, even then failure of a party to adduce evidence in the case amounts to failure to establish its case, unless of course there is admission of the opposing party on record. In support of his arguments that answers to interrogatories be treated as evidence, learned and senior counsel for the plaintiff Mr. R.F. Virjee has relied upon the case reported in PLD 1988 Lahore

294. In thin case it was held that evidence of a person stationed in London can be recorded on Commission. There is no cavil with such a proposition. But here the plaintiff is seeking recording of evidence in USA with the rider that his answers to his own proposed questions be treated as evidence without subjecting his witness to cross-examination by defendant's counsel. The cited case therefore has no relevance for the purposes of deciding the application under consideration. C.M.A. 1403 of 2005 is misconceived. The Plaintiff Company shall however be at liberty to seek permission of this Court to examine its witness on Commission at its sole cost and expense, either in the United States or any other place outside Pakistan, subject of course to the right of the defendant to cross-examine such witness. For the foregoing reasons, C.M.A. 1403 of 2005 is dismissed. S.M.B./M-156/K???????????????????????????????????????????????????????????????????????????????? Petition dismissed.