Susan Leigh Beer vs I.T.D. Corporation
1990 Latest Caselaw 188 Del

JUDGMENT

D.P. Wadhwa, J.

(1) Plaintiff in 1978, suffered injuries in a Swimming Pool in Akbar Hotel owned by Deft. She filed a pauper suit for recovering damages of Rs. 2 crore. She wanted to examine some witnesses in Australia and on 31.1.89, Court allowed her application for a Letter of Request to C.J. of Supreme Court of Queensland. She then made instant application for an order authorising her lawyers of Brisbane to apply to Supreme Court, Queensland for giving effect to Letter of Request of 31.1.89 as required by 0. 40 Rr. 43 & 48 of Rules of Supreme Court of Queensland & S. 1 of Foreign Tribunal?, Evidence Act, 1956 of Australia.]

(2) Plaintiff in 1978, suffered injuries in a Swimming Pool in Akbar Hotel owned by Deft. She filed a pauper suit for recovering damages of Rs. 2 crore. She wanted to examine some witnesses in Australia and on 31.1.89, Court allowed her application for a Letter of Request to C.J. of Supreme Court of Queensland. She then made instant application for an order authorising her lawyers of Brisbane to apply to Supreme Court, Queensland for giving effect to Letter of Request of 31.1.89 as required by 0. 40 Rr. 43 & 48 of Rules of Supreme Court of Queensland & S. 1 of Foreign Tribunal?, Evidence Act, 1956 of Australia.]

(3) Plaintiff in 1978, suffered injuries in a Swimming Pool in Akbar Hotel owned by Deft. She filed a pauper suit for recovering damages of Rs. 2 crore. She wanted to examine some witnesses in Australia and on 31.1.89, Court allowed her application for a Letter of Request to C.J. of Supreme Court of Queensland. She then made instant application for an order authorising her lawyers of Brisbane to apply to Supreme Court, Queensland for giving effect to Letter of Request of 31.1.89 as required by 0. 40 Rr. 43 & 48 of Rules of Supreme Court of Queensland & S. 1 of Foreign Tribunal?,

(4) The procedure appears to be simple enough and I would send a request to the Chief Justice of the Supreme Court, Queensland, to have the witnesses examined on oath or on solemn affirmation and then refer to R. 16-A of 0. 26 of the Civil Procedure Code . as applicable to this court and which is : "16-A.Questions objected to before the Commissioner- (1) Where any question put to a witness is objected to by a party or his pleader in proceedings before a Commissioner appointed under this Order, the Commissioner shall take down the question, the answer, the objections and the name of the party or, as the case may be, the pleader so objecting. Provided that the Commissioner shall not take down the answer to a question which is objected to on the ground of privilege but may continue with the examination of the witness, leaving the party to get the question of privilege decided by the Court, and, where the Court decides that there is no question of privilege, the witness may be recalled by the Commissioner and examined by him or the witness may be examined by the Court with regard to the question which was objected to on the ground of privilege. (2) No answer taken down under sub-rule (1) shall be read as evidence in the suit except by the order of the Court."

The examination of the witnesses may preferably be done in question and answer form.

(5) Now, certain documents are required to be proved in the course of examination of the witnesses on commission. Both the parties have filed documents in this court. Respective documents, filed by each party, will be handed over to the party by the Registry after getting photo copies of the same and both the counsel appearing for the parties in this case shall sign the photo copies which shall be kept on record. One set each of photo copies of the documents will be supplied to both the parties which shall also be similarly signed by both the counsels. If, for any reason, original documents are not produced at the time of examination of any witness, photo copies so obtained may be filed. The documents filed at the time of recording of evidence shall be returned along with commission papers including deposition of witnesses to this court as per procedure. Mr. O.C. Mathur, learned counsel for the defendants, keeping in view the fact that the plaintiff has filed this suit as an indigent person, has very fairly agreed to bear all the cost of preparation of photo copies. Liberty is granted to the parties to produce any other document at the time of examination of the witnesses on commission, provided, however, one set is given to the other side and one filed in this suit within four weeks from the date of this order. The plaintiff or her authorised representative, as per the procedure of the Supreme Court of Queensland is authorised to make an application on behalf of this court to the Supreme Court of Queensland for giving effect to the letter of request issued by this court earlier and also with reference to the request in terms of this order.

(6) Mr. O.C. Matbur, learned counsel for the defendant, contended that the best course for this court would have been to have the witnesses examined on commission under the provisions of the Diplomatic And Consular Officers (Oaths and Fees) Act, 1948. I do not agree. Provisions of this Act are not in substitution or even alternative to the provisions of Ss. 75 to 78 and 0. 26, Civil Procedure Code . which deal with the powers of Court to issue commission or letter of request for examination of the witnesses and (he manner of their examination. The Act covers an entirely different field. It provides for the administration of oaths by diplomatic and consular officers and prescribes the fees leviable in respect of certain of their official duties. Prior to the passing of the Indian Independence Act, 1947, British diplomatic and consular officers performed notaries duties in respect of Indian nationals abroad and charged fees therefore and for other consular functions for which fees were leviable and they were also authorised to administer oath. Legal authority for the exercise of these functions existed in the Consular Salaries and Fees Act, 1891, and the Commissioners for Oats Act, 1889, passed by the British Parliament. On passing of the Indian Independence Act, 1947, Her Majesty's Government in the United Kingdom ceased to have any responsibility in the matter. It had, therefore, become advisable to provide statutory authority for the fixation, levy and accounting of fees to be charged by Indian diplomatic and consular officers abroad and for the administration of oaths and the taking of affidavits by them in much the same manner as was done by British diplomatic and consular officers prior to the Indian Independence Act, 1947. Thus, even if a commission is to be sent for examination of any witness living abroad to any diplomatic or consular officer, it has to be under the C.P.C.

(7) There are two methods of obtaining evidence in a foreign country, namely, by a letter of request addressed to a foreign court or by means of commission appointing an individual to take the evidence thus constituting protanto an officer of the Court. A commissioner has ordinarily no power to compel attendance of a witness. He can only invite the witness to present himself and to give evidence and if the witness declines to do so, the commissioner is helpless. If, on the other hand, recourse is to a Letter of Request addressed to the foreign court concerned, the latter can, if necessary, exercise its power of compulsion. Further, a commissioner can record evidence only if the local law of the country where the commission is sent permits the commissioner to record evidence. Thus, it will appear that a Letter of Request is ordinarily more appropriate method in the case of foreign countries. (See Chapter X of Vol.-I of the High Court Rules & Orders)

(8) In Filmistan (P) Ltd. vs. Bhagwandas the Supreme Court, however, held that S. 77, Civil Procedure Code . read with S. 75 empowered the court to issue a letter of request to any person other than a court to examine witnesses residing at any place not within India and that power of the court was not subject to any reciprocal agreement between the governments. But, I would say that when it comes to issue of commission for examination of a witness be siding at a place out side India a letter of request is to be sent to a court in the foreign country. (S. 77 of the Code) The Supreme Court in the above said judgment further observed that the question whether the evidence is legally admissible or not could certainly be canvassed at the trial of the case and it was not necessary to go into that question at the time of issuing the commission. That takes care of the another argument of Mr. O.C. Mathur that this court should decide at this stage itself as to whether the evidence recorded in pursuance of letter of request would be admissible or not,

(9) I may also note that Mr. Madan Bhatia, learned counsel for the plaintiff, referred to j Barber & Sons vs. Llyod's Underwriters (19862 All Er 845) to submit that where a request is made by a foreign court as to the manner for taking depositions, the English Court should, subject to the exercise of judicial discretion whether to make an order in any particular case, normally employ that method unless what was proposed was so contrary to English procedures that it ought. not to be permitted. But, I need not delve on this aspect as Rule 48 of Order 40 of the Rules and Procedure of the Supreme Court of Queensland, referred to above, is quite explicit. It is agreed between the parties that the commissioner appointed by the Supreme Court of Queensland shall fix date, time and place of recording of evidence after due notices or by consent of the defendant by their advocates M/s J.B. Dadachandji & Co., 3, Parliament Street, New Delhi. ' Ordered Accordingly.