Susan Leigh Beer vs India Tourism Development ...
1990 Latest Caselaw 116 Del

JUDGMENT

D.P. Wadhwa, J.

(1) By this interlocutory application the plaintiff seeks certain directions further to this court's order dated 31st January, 1989 by which a letter of request was directed to be sent to the Chief Justice of the Supreme Court of Queensland, Australia, for the examination of certain witnesses in the above suit pending in this court.

(2) On notice being issued, the defendant has filed its reply to the application seeking certain other directions and not in fact opposing the application of the plaintiff. The plaintiff has desired that an order be made authorising the plaintiff's solicitors, namely, Quinlan, Miller & Treston, 16th Level. West Pac Building, 260 Queen Street Brisbane-4000, to make an application on her behalf to the Hon'ble Chief Justice of the Supreme Court of Queensland, Australia, for giving effect to the letter of request sent by order dated 31st January, 1989, afore-mentioned.

(3) To understand the rival contentions of the parties, it will be necessary to set out the brief background of the case.

(4) The plaintiff filed the suit as an indigent person for recovery of Rs. 2 crores (Rs. 20 millions) as damages for injuries sustained by her in the swimming pool of the defendant's hotel known as Akbar Hotel in New Delhi. She sustained injuries in May, 1978, which it appears, permanently incapacitated her. On pleas, of the parties .this.court framed the following issues; (1)Whether the suit has been filed by a duly authorised person ? (2) Whether New Delhi Municipal Committee was owner of the building of Akbar Hotel and was a necessary party ? (3) Whether the tiles covering the floor of the swimming pool were slippery ? (4) Whether the floor of the swimming pool was not clean and had not been properly maintained, resulting in the growth and accumulation of slime on tiles ? (5) Whether the plaintiff suffered injuries on the account of the nature and condition of the bottom of the pool and due to negligence of the hotel ? If so what injuries were suffered by her? (6) Whether the plaintiff was required to observe any rules in the use of swimming pool and she did not observe the said rules and was herself negligent for the injuries suffered if , any ? (7) Whether the swimming in the pool was at the risk and responsibility of the plaintiff (the guest) and there was no obligation on the hotel in this behalf ? (8) Whether the defendant was in legal duty to keep the swimming pool safe for swimming of guests and the plaintiff was entitled to the benefit of the maxim res ipsa loquitur ? (9) To what amount, if any, the plaintiff is entitled ? To prove her case the plaintiff has necessarily to examine certain witnesses who are in Australia. Accordingly, her application for examination of these witnesses on commission was allowed Mr. Madan Bhatia, Barrister at Law, learned counsel for the plaintiff brought on record Rules 43 and 48 of Order 40 of the Rules and Procedure of the Supreme Court of Queensland and Section 12 of Foreign Tribunals Evidence Act, 1956 (of Australia). Under these rules this court has to authorise a person 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. The Supreme Court of Queensland is to give all such necessary directions for the examination of the witnesses and under Rule 48 it could direct, if it thinks fit, examination of the witnesses to be taken in such manner as may be requested by the letter of request from this court.

(5) 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 Rule 16-A of Order 26 of the Code of Civil Procedure, 1908, as applicable to this court and which is as under : "16-A.Questions objected to before the Commissioner (l) 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.

(6) 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 counsel. 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 foam 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.

(7) Mr. O.C. Mathur, 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 Sections 75 to 78 and Order 26 of the Code of Civil Procedure which deal with the powers of Court to issue commission or letter of request for examination of the witnesses and the manner of their examination. The Act covers an entirely different field. It provides for the administration of oaths by diplomatic and consular officers duties and prescribes the fees leviable in respect of certain of their official. Prior to the passing of the Indian Independence Act, 1947, British diplomatic and consular officers performed not arial 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 Commissioner for Oats Act, 1889, passed by the British Parliament. On passing of the Indian Independence Act, 1947. Her Maiestv'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 provisions of the Code of Civil Procedure.

(8) 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 pro tanto 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 letter 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).

(9) In Filmistan Private Ltd. v. Bhagwandas Santprakash and Anr. the Supreme Court, however, held that Section 77 of the Code of Civil Procedure read with Section 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 the 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 residing at a place out side India a letter of request is to be sent to a court in the foreign country. (Section 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.

(10) I may also note that Mr. Madan Bhatia, learned counsel for the plaintiff, referred to a decision of the Queen's Bench Division in J Barber & Sons (a firm) v. Llyod's Underwriters & Ors. (1986 2 All Er 845) 10 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 exploit. It is agreed between the parties that the comnissioner 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. Dadachanji & Co., 3, Parliament Street, Jeevan Vihar Building, New Delhi.

(11) Ordered accordingly. Registry will take necessary steps in terms of this order.