1989 PLP 30 (CLC)

A.J. Picford for Plaintiff No.l. E.A. Nomani for Plaintiff No.2. Sultan Ahmed Shaikh and Wajihuddin for Defendant. By this application under section 35 of the Patents and Designs Act, the defendant has prayed that the Assessor Dr. Anwar Ejaz Baig be directed to be present in Court for cross‑examination by the Defendant. The Assessor has been appointed under subsection (1) of section 35 of the Patents and Designs Act, 1911. Nowhere in this Act has it been provided that the Assessor shall be liable to a cross‑examination. The Assessor is in the nature of a person, who sits to assist or advise a Judge on skilled or technical points of law. Neither the plaintiffs' counsel, not the counsel for the Defendant was able to cite any direct authority on the point, obviously because there does not appear to be any such dispute in the past in which a request for cross‑examination of an assessor may have been made. Under the Criminal Procedure Code there used to be a provision for appointment of assessors to assist the sessions Judge in murder cases. It need not be recalled that the assessors were not liable to be cross‑examined on the opinion that they used to express in those cases. Under old section 309, Cr.P.C. after the conclusion of the evidence and arguments each of the assessors were‑required to state his opinion orally and the Judge was to record such opinion. In ILR 40 Cal. 163 it was held that section 309, Cr.P.C. gives the Judge a discretion to sum up the evidence for the benefit of the assessors if he thinks necessary but it gives him no power to question them until they have delivered their opinion orally and he has recorded such opinion. If there was any thing obscure in their verdict there was no objection to the Judge asking question to clear such obscurity, but he was bound to allow the assessors to express their own opinion independently in their own words on the whole case before interfering with them in any way or asking them any question whatever except what is their opinion. Section 35 of Patent and Designs Act 1911 provides for the appointment of an assessor. It is obviously in addition to the expert witnesses which the parties have a right to examine on their behalf and such witnesses of course are liable to be examined and cross‑examined by the respective parties. The assessor if he is treated as an assistant or advisor of the Court is definitely not liable to be cross‑examined. The Court may however, put such questions to a person appointed as an assessee under section 35 of Patent and Designs Act as were allowed to an assessor under old section 309, Cr.P.C: to elucidate or to clear any obscurity in his opinion if it is there. I am therefore of the clear view that an assessor appointed under section 35 of Patent and Designs Act is not liable to be cross‑examined by any one of the parties. The Court has however, a1F right to put questions to the assessors to clear any obscurity which is there in his opinion. C.M.A. No.4795 of 1987 is therefore dismissed. The plaintiff has already filed affidavits of Gerald Henry and Aftab Ahmad Director of Quality Control of the plaintiff company whereas the defendant has filed affidavits of Obedullah their Production Director and Dr. Shamshuddoha, an Ex‑Deen of Pharmacy of Karachi University. The parties can refer to their affidavits at the time of arguments. They can also request the Court to put such questions to the assessor Anwer Ajaz Beg in the light of these affidavits to clarify any obscurity in the opinion of the assessor. After the above order as dictated and pronounced Mr. A.J. Picford, Advocate was called upon to resume his arguments. While the arguments of Mr. A.J. Picford were in progress Mr. Wajihuddin, Advocate for the defendant appeared and stated that his client has instructed him to file an appeal against the order passed on C . M . A . No.4095 of 1987. He therefore requested that further arguments of Mr. A.J. Picford be adjourned. At the request of Mr. Wajihuddin and in spite of the opposition of Mr. A.J. Picford and Mr. Naumani advocates for the plaintiff the case is adjourned to a date in office. M . Y . H . / S‑252 / K Application dismissed.