Delhi High Court
Dolby International Ab & Anr. vs Das Telecom Private Limited & Ors on 1 February, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) No. 1426/2016
% 1st February, 2018
DOLBY INTERNATIONAL AB & ANR. ..... Plaintiffs
Through: Mr. Chander M. Lall, Sr. Adv.
with Ms. Saya Chaudhary
Kapur, Mr. Vivek Ranjan, Mr.
Nikhil Chawla, Mr. Devanshu
Khanna, Mr. Ujjawal Sinha,
Ms. Kanika Kanwar and Mr.
Rupin Bahl, Advocates.
versus
DAS TELECOM PRIVATE LIMITED & ORS. ..... Defendants
Through: Mr. Saikrishna Rajagopal, Ms.
Julien George, Mr. Yatinder
Garg and Mr. Yashpal Prasad,
Advocates for D-2,3 and 4.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? YES
VALMIKI J. MEHTA, J (ORAL)
1.
Counsel appearing for the defendants states that if any
bank guarantee given by the defendants in favour of the plaintiffs has
expired then such bank guarantee will be regularly renewed during the
pendency of the suit, and any expired bank guarantee will be
positively renewed within a period of two weeks from today.
I.A.No.__/2018 (to be numbered)
2. This application is taken across the Board today
inasmuch as today evidence is to be recorded in the present suit before
the Local Commissioner.
3. By this application, the defendants are seeking the relief
that the plaintiffs are not justified in objecting to the presence of the
defendants' technical expert Dr. Yurity Reznik during the cross-
examination of the plaintiffs' witness PW-2 and that plaintiffs are
wrongly not commencing their evidence on account of the presence of
Dr. Yuriy Reznik and the plaintiffs be directed to record their
evidence.
4. Learned counsel for the plaintiffs, in support of its
arguments that the defendants' witness Dr. Yuriy Reznik, and who is
an expert witness as also witness on facts should not be present during
the cross-examination of the plaintiffs' witness. On behalf of the
plaintiffs reliance is placed upon Chapter XIII Rule 4 of the Delhi
High Court (Original Side) Rules, 1967 and this rule reads as under:-
"4.Witnesses not to be present in Court during hearing of the suit:
Witnesses other than the parties shall not, unless otherwise ordered by the
Court be present during the hearing of the suit or other matter in Court-
room before their depositions have been recorded."
5. Counsel for the plaintiffs also places reliance upon a
judgment of a learned Single Judge of the Bombay High Court in the
case of Maharashtra Small Scale Industries Development
Corporation Ltd. Vs. M. Surda Corporation and Others 1983 SCC
OnLine Bom 149 and which holds that witnesses of both the parties
should be ordered out during examination of witness of the party.
6. In my opinion, this application has to be allowed and
contentions urged on behalf of the plaintiffs are to be rejected that
defendants' technical expert Dr. Yuriy Reznik cannot be present
during the cross-examination of the plaintiffs' witness. I may note
that the subject suit is a suit alleging infringement of patent and the
witness who has to be cross-examined on behalf of the plaintiffs is a
technical expert. Surely, lawyers would not be expected to have
technical knowledge to cross-examine a technical witness and even a
party and/or his authorized representatives may not have necessary
technical knowledge for cross-examination of a technical expert.
Therefore surely the defendants will be entitled to have the presence
of their technical expert Dr. Yuriy Reznik during the cross-
examination of PW-2, and in fact if this is not done there will be
complete violation of principles of natural justice and rule of law
because effectively a person will be asked to shoot in the dark while
defending his case and denied an entitlement to effectively contest.
This is not and cannot be the purpose of law.
7. I may note that during the good old days when witnesses
of one of the party used to be cross-examined then the other witnesses
of that very party were not allowed to be present in Court because
otherwise the witnesses of that very party would learn from the cross-
examination of the earlier witness of the parties. Today however, this
has changed and is only in the realm of theory because evidences of
all the witnesses of one party who depose on common aspects in a
case are not recorded together on one date and all of them are not
cross-examined on the same date. Therefore even in normal
circumstances what is the cross-examination of a witness of a party is
in the knowledge of witnesses of both the parties to the case, who
would subsequently depose.
8. With all humility I cannot agree with the general
observations made by the learned Single Judge of the Bombay High
Court in the case of Maharashtra Small Scale Industries
Development Corporation Ltd. (supra) because if such observations
made by the learned Single Judge are taken as general then the same
will result in almost negating the right of proper and effective cross-
examination of an expert witness and which expert witness of the one
side can only be properly cross-examined if the other side has
assistance of an expert with him/it.
9. Learned senior counsel for the plaintiffs argued that the
defendants' expert is also a witness to a factual statement, and has
filed his affidavit by way of evidence, and therefore such expert being
also a fact witness should not be allowed to be present, however as
already stated above the theoretical position of all witnesses of a party
for common aspects being examined and cross-examined on one date
no longer exists. In the present case also evidence of various witnesses
and various parties and their cross-examinations are to be recorded
over several different dates. Also, merely because this expert witness
of the defendants has filed his affidavit by way of evidence with
respect to a fact situation of the present case would not mean that he
should not be allowed to be present inasmuch as surely after the
completion of defendants evidence if the plaintiffs feel that rebuttal
evidence is necessary or any further evidence is required by the
plaintiffs, then in such circumstances plaintiffs can always, in
accordance with law move appropriate application for seeking
appropriate reliefs.
10. This application is accordingly allowed and disposed of
allowing the presence of Dr. Yuriy Reznik during the cross-
examination of the witnesses of the plaintiffs.
FEBRUARY 01, 2018/ib VALMIKI J. MEHTA, J
