Deepak Kapur vs Ashok K. Ghose And Ors.
1994 Latest Caselaw 343 Del

JUDGMENT

K. Shivashankar Bhat, J.

(1) These appeals were allowed earlier on 9th March, 1994, setting aside two orders of the learned Single Judge - (1) an order declining the list of witnesses as it was filed out of time and (2) appointing a commissioner to record evidence with a power to the commissioner to disallow questions which did not arise from the pleadings of the parties or the issues. As to the former Order, the Bench declined to interfere with the order of the learned Single Judge, but permitted the appellant to move an application for review or for condensation of delay for taking the list of witnesses on record. However, the second referred order appointing the Commissioner, was set aside on the ground that the said order went beyond the provisions of Order 26 of the Code of Civil Procedure. None of the witnesses was exempted from appearance in Court, none was sick, nor was infirm. The Bench proceeded on the assumption that provisions of Order 26 Civil Procedure Code are exhaustive of the circumstances under which a commissioner could be appointed to examine the witnesses and therefore, an order appointing a commissioner to examine all witnesses, irrespective of the circumstances referred in Order 26 Civil Procedure Code will be illegal.

(2) The learned counsel for the plaintiff (respondent in the appeal) moved an application in each of the appeals seeking review of the order made in the Appeal, to the extent of the said order setting aside the appointment of the Commissioner.

(3) Ms. Luthra strongly relied on Chapter X-A of the Delhi High Court Civil (Original Side) Rules and contended that the Rule inserted as per the said Chapter in the year 1991 was not placed before the Bench on the earlier occasion and that under this amended Rule, the court has ample power to appoint a Commissioner to record evidence in a case, without being conditioned by the provisions of Order 26 CPC.

(4) The Rule relied upon by the learned counsel reads thus :- "X-A Evidence on Commission at Court's direction. Commissions to examine parties & witnesses :- Not withstanding anything contained in Order Xxvi of the Code of Civil Procedure, 1908, the Court may, at its discretion, in any suit, at any stage, direct that the parties and witnesses be examined on Commission. The evidence recorded on Commission shall be read as evidence in the suit.'

(5) No doubt, there was an obvious mistake in not pointing out the above Rule while arguing the appeals earlier. In the circumstances, we hearer thr leaned counsel on both sides at length as to the scope of the above Rule in Chapter X-A to consider whether the earlier order should be reviewed.

(6) Chapter X-A of the Rules over-rides the provisions of Order Xxvi of C.I'C, in view of the opening non-obstante clause. Its effect is to say that inspite of the provisions of Order Xxvi of the Civil Procedure Code, the provisions stated in this Rule will have its full operation and that the provision embraced in Order Xxvi of Civil Procedure Code will not be an impediment for the operation of the Rule in Chapter X-A. The principle implicit in the contention of Ms. Luthra is that to understand the scope of this non- obstante clause, it is necessary to ascertain what the enacting part of the Rule in Chapter X-A of the Rules provides on a fair construction of the words used according to their natural and ordinary meaning. The non-obstante clause is to be understood as operating to set aside as no longer valid anything contained in the provisions of Order Xxvi of the Code of Civil Procedure, which are inconsistent with the Rules. (Vide Aswini Kumar Ghosh Vs. Arbmda Bose: ).

(7) The enacting part of the Rules says that the court may, at its discretion, in any suit, at any stage, direct that the parties and witnesses be examined on commission. The power given to the Court to direct the examination of any witness or party, is not trammeled by any conditions. The circumstances under which Commission may be appointed are also not enumerated, unlike Order Xxvi of the CPC.

(8) Order Xxvi of the Civil Procedure Code does not empower the Court to appoint a Commissioner to examine the witnesses except under certain circumstances. Commission may be directed to examine a person who is exempted from attending the court or a person is unable to attend the court due to sickness or infirmity as per Order 26 Rule 1. Similarly, Order 26 Rule 4 permits the examination of certain persons only, on commission.

(9) Power given to the court under Order 26 of the Code of Civil Procedure is a discretionary power and like all discretions vested in the court, this discretion also is a judicial discretion. Reasons for issue of a commission are to be recorded and this requirement found in Order 26 of Civil Procedure Code is a salutary requirement to sec that the discretion is judicially exercised and not arbitrarily.

(10) If the contention of Ms. Luthra, the learned counsel for the respondent is taken to its logical end, the effect of the non-obstante clause in the Rule in Chapter X-A is to over-ride even the requirements of recording reasons for issuance of the commission, because, the enacting part of the said Rule nowhere requires that the court should record reasons while directing that the parties and witnesses be examined on commission. Being the power exercised by the court at its 'discretion', the exercise of the said discretion shall have to be read as hedged by the requirement to record reasons for issuing such a direction. This aspect of the Rule indicates, that the scope of the said Rule is not to completely abrogate the principles underlying the provisions of Order 26.

(11) Another important aspect is the principle behind Rule 16A of Order 26 of the Code of Civil Procedure. As per this Rule, the Commissioner has no power to over rule any objection to any question put to a witness. It is for the court to consider the admissibility or relevance of the answer to such a question. It is obvious that, the power to over rule a question and strike off an answer as legally objectionable, is a judicial power. This power cannot be delegated to the Commissioner. Can it be said that such a salutary principle that judicial power cannot be delegated has been given a go by under the Rule in Chapter X-A of the High Court Rules? The answer is obvious. It cannot be said that while making the said Rule, this Court thought of permitting the court while appointing a Commissioner, to vest in the said Commissioner the judicial power of deciding the admissibility or relevance of any question put to a witness or the answer given by the witness to such an objected question.

(12) A legislative power may be delegated under certain circumstances; the basic condition to besatisfied by a delegated legislation is that the policy of the law shall have'to be formulated by the legislature and the details and the manner of implementing this policy may be left to the delegate. However, the essential functions of making a law cannot be delegated by the Legislature. But the judicial power shall have to be exercised only by the court, the Tribunal or the authority with whom the power is vested under the law of the land. Delegation of the judicial power by the court. Tribunal or such an authority is impermissible. The power to issue a commission to collect evidence is not a power enabling the delegation of the essence of the Court's judicial function. Such commissions are issued to collect evidence or material to enable the court to decide the issues before the Court. But the process of recording the evidence may involve exercise of the essential judicial function of deciding the relevancy or admissibility of an evidence - any answer to a question objected to or of any document sought to be introduced in the evidence. This essential judicial function, has to be distinguished from the other functions of examining a witness, local investigation, effecting a partition based on judicial directions etc.

(13) Court is seized of the lis between the litigating parties before it; while going into the respective cases and examining the material placed before it, it is for the court to decide whether a particular piece of evidence, is an evidence that can be legally looked into at all. This, aspect of deciding the admissibility or relevance of an evidence necessarily includes, the further power to permit or not to permit any question to be put to a witness. These powers are the attributes of judicial functions which cannot be delegated to an outside agency, like a Commissioner.

(14) Section 165 of the Evidence Act vests an important power in the Judge to put questions to a witness; this power is given to enable the Judge to discover or to obtain proper proof of relevant facts. If examination of all the witnesses are to br done in a suit through the Commissioner appointed by the Court, it is not possible for the court to exercise this power always. While considering the scope of the Rule in Chapter X-A of the Rules in queson, this aspect also shall have to be borne in mind.

(15) Therefore, it cannot be said that under the Rule in Chapter X-A (in question). an absolute and unfettered discretion is given to the court to direct the parties and witnesses to be examined on commission. This power shall have to be read as an exceptional power to be exercised in rare cases. There may be several unforeseen circumstances in which a strict adherence to the provisions of Order -XXVI of the Civil Procedure Code may create difficulties in getting a witness to depose before the Court. Similarly, at a particular stage of the suit, a situation may crop up that a particular party or a witness shall have to be examined and such an examination in the court may be found not possible immediately. One of the situations is that a party or a witness, due to security reasons cannot be brought to the court at all; in another case, when the suit is taken up for arguments, it is realised that a witness shall have to be examined immediately and such an examination in the court may cause further delay or may come in the way of the court to go on with an urgent suit. It is difficult to make an advance catalogue of the circumstances, in which this power could be exercised. Each case shall have to be examined to see whether the situation requires a departure from the normal rules provided under Order Xxvi of the Code of Civil Procedure. The non-obstante clause in the Rule in question (under Chapter X-A of the High Court Rules) shall have to be understood as a proviso or as an exception to the power of the court under Order 26 CPC. It is not a provision permitting a "wholesale" delegation of court's function to examine the parties and witnesses in a suit.

(16) It is permissible to read a non-obstante clause, as a clause of clarification. In other words, the purpose of a non-obstante clause may be in some cases to override the earlier law; in some cases its purpose may be to clarify the earlier law. (Vide Dominion of India Vs. Shivbai A. Irani; ).

(17) It is of utmost importance in a trial (civil or criminal) that normally the witnesses are examined in the open court. The very atmosphere in the court acts, in many cases, as a deterrent against the witness deposing falsehood. Secondly, the demeanour of the witness could be watched and scrutinised by a Judge in a better manner than a Commissioner. One of the foundations of evidence is the demeanour and the appearance of the witnesses which may properly be taken into account by the Judge (Sarkar on Evidence, Vol. I, 14th Edition, page 41).

(18) Appellate Courts attach great weight to the decision of a trial court based on appreciation of oral evidence, because of the importance attached to the inferences drawn from the demeanour of witnesses. In this connection following observations of the Supreme Court in Rajbir Kaur & Another Vs. M/s. S.Chokosiri & Co.; are quite apposite here; the court observed : "Reference on the point could also usefully be made to A.L.Goodhart's article (71 Lqr 402 at 405) in which, the learned author points out : 'A judge sitting without a jury must perform dual function. The first function consists in the establishment of the particular facts. This may be described as the perceptive function. It is what you actually perceive by the five senses. It is a datum of experience as distinct from a conclusion.' It is obvious that, in almost all cases tried by a Judge without a jury, an appellate court, which has not had an opportunity to seeing the witnesses, must accept ins conclusions of fact because it cannot tell on what grounds he reached them and what impression the various witnesses made on him.'. "The following is the statement of the same principle in "The Supreme Court Practice" (White Book 1988 Edn. Vol.1). "Great weight is due to the decision of a judge of first instance whenever, in a conflict of testimony, the demeanour and manner of witnesses who have been seen and heard by him are material elements in the consideration of the truthfulness of these statements. But the parties to the cause are nevertheless entitled as well on questions of fact as on questions of law to demand the decision of the Court of Appeal, and that Court cannot excuse itself from the task of weighing conflicting evidence,, and drawing its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should . make due allowance in this respect." (p. 854-55) "......NOTto have seen witnesses puts appellate judges in a permanent position of disadvantage against the trial judge, and unless it can be shown that he has failed to use or has palpably misused his advantage for example has failed to observe inconsistencies or indisputable fact or material probabilities (ibid and Yuill (1945) p. 15; Watt Vs. Thomas (1947) Ac 484) - the higher court ought not to take the responsibility of reversing conclusions so arrived at merely as the result of their own comparisons and criticisms of the witnesses, and of their view of the probabilities of the case...."

(P.855)    "BUT while the Court of Appeal is always reluctant to reject a finding by a Judge of the specific or primary facts deposed to by the witnesses, especially when the finding is based on the credibility or bearing of a witness, it is willing to form an independent opinion upon the proper inference to be drawn from it......"  

(P.855)   

(19) The recent experiences of our courts that the Judge who records the evidence is not available to decide the suit when the suit reaches the final stage, is irrelevant while interpreting the Rule in question. Court should proceed with the presumption that the same Judge who holds the trial would decide the case ultimately.  

(20) Examination of parties and witnesses in the court should be considered as the normal rule; it is only under exceptional circumstances, a departure may be made from this rule. When the court directs that all the parties and all the witnesses in the suit shall be examined on commission, there should be extraordinary circumstances to justify the said direction.  

(21) The learned Single Judge, in the instant case while directing the examination of the parties and the witnesses on commission, held that the suit involves the validity of the election of the defendant as a district Governor and the period of his holding the office will be ending on 30.6.1994, and therefore, the commission should be issued to examine the witnesses. This order was made on 4.3.1994 in the suit filed in May or June 1992. The order required the Commissioner to start recording evidence of the parties on 9.3.1994 and to fix dates thereafter. The order does not fix the period within which the examinations should be concluded and report to be made. The order does not ensure that the suit would be decreed early before 30.6.1994. The order fails to consider the possibility of granting a declaratory relief to the plaintiff, if he succeeds, even after 30.6.1994. No exceptional and extraordinary circumstance is shown to exist to depart from the normal rule.

(22) The contest in the suit mainly involves prestige of parties. The relief sought in the suit does not pertain to any right to property or a public office or a private office in which the office holder would be entitled to some decent remuneration. The subject matter of the suit is not even concerned with family relationship. The Governorship of a Rotary Club is not a public office. In these circumstances, delay in the disposal of the suit having regard to the large pendency of cases on . the Court, is no ground to deviate from the normal rule of examining the witnesses in the open court. Likely delay in the disposal of the suit has become a normal feature in the Courts and if reduction of the delay is a valid ground to examine witnesses on commission, the said procedure shall have to be adopted in every suit. Then, the rule of exception would cease to be an exception and would become the normal rule. We do not consider the scope of Chapter X-A of the Original Side Rules, is to introduce a new regular procedure. Some of the basic textures of the judicial functions in the trial of the suit are that the Judge should, as far as possible, be in a position to appreciate the depositions Along with the demeanour of the witnesses; the admissibility or relevancy of the questions put to the witnesses and their answers and that of the documents are to be decided by the Court; the court should have an opportunity to seek clarifications from the witnesses regarding any part of the deposition, if such a clarification becomes necessary; the trial of the suit should normally be held in a judicial (Court room) atmosphere, which itself conditions the witness to depose truthfully. We emphasise that the normal rule is to examine the parties and the witnesses in the court and their examination on Commission is an exception to the normal rule. The discretion vested in the court to direct the examination of witnesses on commission has to be exercised judicially and this power has to be resorted to only under exceptional circumstances. Direction to examine all the parties and witnesses on commission, without reference to any extraordinary reason for the departure from the normal rule, is prima facie an illegal exercise of the discretionary power. Pendency of a larger number of cases in the courts by itself is not a valid ground to direct the examination of all the witnesses and parties in a suit on commission.

(23) The learned counsel for the respondent, pointed out that the order directing the examination of witnesses being a discretionary order, the appellate court cannot interfere with the said order and relied on the decision of the Supreme Court in Filmistan (Pvt.) Ltd. Bombay Vs. Bhagwandas; . It was a case where the witnesses were residing at Kabul, in a foreign country. On facts the 'court held that no case was made out for interfering with the discretion of the trial Judge.

(24) There can be no two opinions as to the relevant proposition. The Appellate Court would not interfere with the exercise of the discretion by the trial court (or by any subordinate court). But, if the exercise of the discretion is based on reasons which are not relevant to the said exercise or while making the order the court ignores the relevant factors that ought to have been considered, or the scope of the power under which the discretion is exercised has been overlooked, the appellate court is justified in interfering with such an order.

(25) In Uttar Pradesh Cooperative Federation Ltd. Vs. Sunder Bros.. Delhi; , the Supreme Court observed at page 253, page 8 - "IN dealing with the matter raised before it at the appellate stage the appellate court would normally not be justified in interfering with the exercise of the discretion under appeal solely on the ground that if it had considered the matter at the trial stage it may have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner 'the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. As is often said, it is ordinarily not open to the appellate court to substitute its own exercise of discretion for that of the trial judge; but if it appears to the appellate court that in exercising its discretion the trial court has acted unreasonably or capriciously or has ignored relevant facts then it would certainly be open to the appellate court to interfere with the trial court's exorcise of discretion. This principle is well established; but as has been observed by Viscount Simon, L.C., in Charles Osenton And Co. Vs. Johnson, 1942 Ac 130 at page 138: The law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual cases".

(26) There is a distinction between a judicial discretion and an administrative discretion and when the challenge is to the exercise of a judicial discretion, appellate court is always hesitant and slow in interfering with it.

(27) Francis Bennion on Statutory Interpretations (2nd Edition), at page 77 comments : "ING Vs. G (1985) 1 Wlr 647 the House of Lords stressed the importance of preserving the distinction, admittedly fine between the grounds on which a court will reverse the exercise of a judicial discretion and those, slightly more extreme, on which it will be prepared to reverse the exercise of an administrative discretion. The former will be done where the decision is clearly wrong; the latter only in accordance with the more stringent test imposed by the Wednesbury principle (a decision reported in 1948 - Ikb 223). This ruling reflects the fact that in relation to judicial discretion an appellate court is supervising one of its own, whereas in relation to administrative discretion the court is intruding on a different constitutional sphere. In other words an appellate court should interfere with a discretionary decision only when it considers that the Judge of first instance has not merely preferred one imperfect decision when it would have chosen another, but has gone further and exceeded 'the generous ambit within which a reasonable disagreement is possible."

At page 738, the learned author has considered the Wednesbury principle, which in substance is, " the decision making rules require that the decision be taken in conformity with (1) legality, and (2) rationality, and (3) procedural propriety". These three aspects are then discussed in further detail by the learned author.

(28) A decision ignoring the exceptional nature of the discretion to be exercised and while exercising the discretion, all the relevant circumstances are ignored or irrelevant factors went into the decision making process, would be illegal. These principles are always relevant in all spheres of law and are not limited to the administrative law only.

(29) Mr. Singhvi, the learned counsel appearing for the appellant contended that the Rule in Chapter X-A of the Rules will be ultravires the provisions of Section 75 of the Code of Civil Procedure, if an absolute and wide discretion is read into the Rule in question.

(30) The Rule making power of the High Court has been noticed in the decision of a Full Bench of this Court in M/s. Printpack Machinery Ltd. New Delhi Vs. M/s. Jay Kay Paper Congeters, New Delhi,; . It was held that the Original Side Rules prevail on the Original Side of this Court and not the Civil Procedure Code.

(31) Under Section 122 of the Code of Civil Procedure, the High Courts are empowered to make rules regarding their own procedure and may by such rules annul, .alter or add to all or any of the rules in the First Schedule to the Code of Civil Procedure. Section 129 was referred by the learned counsel for the respondents to contend that, the power to make rules,, is very wide and all the provisions of the Code of Civil Procedure can be bypassed by the High Court while making the rules governing its own procedare.

(32) In Chandra Bhushan Vs. Jayatri Devi; , a Full Bench of Allahabad High Court explained the scope of Section 121 and 128 of the Code of Civil Procedure. R.S.Pathak,J. (as he then was) speaking for the Full Bench, observed at page 153 :- "Now, what is of significance is that the sections of the Act, namely the 'body of the Code', can be altered by legislation only. Legislation may be effected by Parliament or by a State Legislature. The sections cannot be altered or amended by the High Courts. In that sense' the 'body to the Code' consists of provisions which are fundamental and less easily amenable to amendment than the rules contained in the First Schedule. The sections enjoy a certain status and a related degree of permanency denied to the rules contained in the first Schedule which can be anulled, altered or added to by rules made by the High Courts under Section 122. The power to annul, modify or add to the rules contained in the First Schedule has been conferred upon the High Court for the purpose of answering local needs and adapting the First Schedule to effectively serve that purpose. It was pointed out by Sir Lawrence Jenkins, C.J. in Mani Mohan Mandal Vs. Ramratan Mandal, Air 1917 Calcutta 657: "THE body of the Code is fundamental and is unalterable except by the legislature; the rules are concerned with details and machinery and can be more readily altered. Thus it will be found that the body of the Code creates jurisdiction while the .rules indicate the mode in which it is to be exercised. It follows that the body of the Code is expressed in more general terms, but it has to be read in conjunction with the more particular provisions of the rules."

The opinion of the Full Bench of this Court in M/s. Printpack Machinery Ltd. case involved Order 37 Civil Procedure Code and not any of the Sections of CPC.

(33) In the view, we have taken as to the scope of the Rule in Chapter X-A of the Original Side Rules, it is unnecessary to go into this aspect of the question; we have already held that the power under the Rule in question has to be exercised under exceptional circumstances. Actually the scope of the said discretion in no way travels beyond the power given to the Court by Section 75 of the Code of Civil Procedure.

(34) Scope of Section 75 Civil Procedure Code came up before a Bench of Lahore High Court in Sawan Mal Vs. Raunaq Mal; Air 1922 Lahore 47. At page 48 the Court held :    "WE are of opinion that Section 75 defines clearly the circumstances under which a commission may be issued, and Sangeli Vs. Mookan (2) explains that it does not authorise a Court to delegate to a Commissioner the trial of any material issue which it is bound to try."  

(35) To the same effect is the observation of the Court in Tulsi Ram Vs. Dina Nath; Air 1926 Lahore 145 at 146 :    "NO evidence at all was taken by the Court, and the records consist of reports of various commissioners, evidence taken by them and objections of the parties to the reports. The lower Court was competent to issue a commission for the examination of the accounts, but the case is not one which can be decided solely on the result of such an examination. There are various points in controversy which have to be determined by the Court on evidence, and the Subordinate Judge had no power to make over the whole case to the Commissioners and to delegate his functions in the matter of taking evidence and determining issues to them."  

(36) A Bench of this court pointed out in Kishan Lal Vs. Dujodwala Industries; , that the normal rule is to examine the witnesses in open court and the examination by the Commissioner is an exception. The Bench ob- i served:    "SCHLESINGER in 'Comparative Law Cases and Materials' (1950 Edition), after comparing various civil procedures has this to say about a continuous trial: 'The civilians ..... seems to realize more and more the advantages of a 'day in court', permitting the Judges, who are the triers of the facts, to obtain a live and immediate impression of the witnesses...... So long as the civil jury remains with us, it will always be necessary to concentrate the introduction of evidence in one trial which then becomes the focus of the whole proceeding......' The system of holding a continuous trial in an open court not only helps the Judge to do better justice, it also convinces the public that justice is being done. A citizen interested in finding out the quality of justice administered in the courts can sit through the trial and judge for himself the decision given in the case. Sir Maurice Amons in an article'A day in Court at Home and Abroad' (2 Cambridge Lj 340 [1926]) after examining various procedural systems, observes that any member of the public sitting in a court in England can hear a case opened, witnesses examined and cross-examined, relevant portions of documents, if any, read, and at the end of the proceedings, be in a position to form his opinion whether the decision given by the Judge is reasonable."  

(37) A learned Judge of Madras High Court pointed out in Ramakrishna Vs. F.E. Hardcastle & Co. ; :    "THE general rule is, and this should not be lost sight of or blurred, that the evidence of a witness in an action, be he or she be a party or not, should be given in public court and tested by cross-examination. Inability to attend court on grounds of sickness or infirmity, or detriment to the public service would justify the issue of a commission. The Court has got a discretion to relax the rule of attendance in court where the person sought to be examined as witness resides beyond the local limits of the jurisdiction of the Court. This discretion may be exercised even if the person happens to be no other than the defendant (See Subramania Chettiar, in re, ). There can, of course be no rule of law demarcating the boundaries and the area of the discretion to be exercised in these matters. What can however, be stated is that the court of Nisiprius must act judicially having regard to all the circumstances of the case, ...the desirability of the physical presence of the witness in court to enable it to observe his or her demeanour, and the not unusual fact that convenience and economy of expenses for the applicant may involve his opponent in great inconvenience and considerable expenses."  

(38) In Sri Ram Vs. Ashwani Kumar ; Air 1978 Jammu & Kashmir 78, the court pointed out that the fact that the examination of witnesses at the place of the Court would cause undue expense to the plaintiffs and would also delay the trial of the suit are not by themselves sufficient for the exercise of the discretion either under Rule I or Rule 4 of Order XXVI.  

(39) It is true that while allowing the appeals earlier, the provisions of the Rule in Chapter X-A of the Original Side Rules was not placed before the Court. If the said Rule gives an absolute and unbridled discretion to the court to direct the examination of the parties and witnesses, certainly the judgment rendered by the Bench needs to be reviewed. But that cannot be the scope of the Rule.  

(40) We have considered the scope of the said Rule and we are of the view that the exercise of the discretion by the learned Trial Judge is not in accordance with the scope of the discretionary power. We have noticed the inherent limitation in the Appellate power to reverse a discretionary order of a Court; With utmost respect to the learned Single Judge, we are constrained to conclude that the discretion was not exercised in the manner and under circumstances, in which the discretion should have been exercised. Therefore, we find no reason to review the earlier order made in these appeals. The review applications are accordingly rejected.

(41) Since the review applications are confined to one part of the earlier judgment only, we decline to go into the other aspect of the judgment permitting the defendant to reagitate the question in relation to the list of witnesses. The applications are rejected. No costs.