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Ghulam Rasool Khan Vs. Wali Khan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtJammu and Kashmir High Court
Decided On
Case NumberCivil Revn. No. 173 of 1981
Judge
Reported inAIR1983J& K54
ActsEvidence Act, 1872 - Sections 137 and 138
AppellantGhulam Rasool Khan
RespondentWali Khan
Appellant Advocate K.N. Raina, Adv.
Respondent Advocate S.L. Kaul, Adv.
DispositionRevision allowed
Cases Referred(Ram Singh v. Ram Bahadur Singh). The
Excerpt:
- .....defendant opposed the demand and contended that he can either cross examine the witness orally or file cross interrogatories and, that he would decide upon what course he should adopt only after the replies of the witness to the interrogatories served by the plaintiff were known. for this, he relied upon the decision of the patna high court in air 1934 pat 60, (ram singh v. ram bahadur singh). the trial court held that the defendant was bound to file the cross interrogatories and after the court had examined the interrogatories, the defendant could claim the cross examination of the witness orally and that if the court found that such oral examination was necessary, it could allow the same, accordingly the court directed the defendant to file the cross-interrogatories for service on the.....
Judgment:
ORDER

Mufti Baha-Ud-Din Farooqi, J.

1. In this case, the plaintiff sought to examine the fingerprint expert on commission and accordingly filed the interrogatories. The Court called upon the defendant to file the cross interrogatories. The defendant opposed the demand and contended that he can either cross examine the witness orally or file cross interrogatories and, that he would decide upon what course he should adopt only after the replies of the witness to the interrogatories served by the plaintiff were known. For this, he relied upon the decision of the Patna High Court in AIR 1934 Pat 60, (Ram Singh v. Ram Bahadur Singh). The trial Court held that the defendant was bound to file the cross interrogatories and after the court had examined the interrogatories, the defendant could claim the cross examination of the witness orally and that if the Court found that such oral examination was necessary, it could allow the same, Accordingly the Court directed the defendant to file the cross-interrogatories for service on the witness. Aggrieved by this order the defendant has come up in revision to this Court.

2. In Ram Singh's case (supra), it has been held that when handwritting expert is to be examined on commission by written interrogatories, the party entitled to cross examine can either file written cross interrogatories, or insist upon an opportunity being given to him to cross examine the witness orally, and that, where the Court does not give this choice to such a party, it acts without jurisdiction. Thus where a witness is sought to be examined by a party on commission by written interrogatories, the other side has a choice before it, either to file written interrogatories or to insist upon an opportunity being given to him to cross-examine the witness orally. Accordingly it was incumbent upon the trial Court to enquire from thedefendant whether he wanted to cross examine the witness orally or by written interrogatories, and if the defendant had indicated that he would like to cross examine the witness orally, then the Court ought to have made a direction that the Court executing the commission shall give him an opportunity to cross examine the witness orally. On the other hand, if the defendant had stated that he would like to cross examine the witness through written interrogatories, then the Court ought to have allowed him reasonable time to file the same. The trial Court has not adopted this procedure, the reason being that it has not been able to appreciate the law laid down in Ram Singh's case (supra) correctly. It is unthinkable and the authority nowhere lays down that the oral cross examination of a witness would be permissible after his examination and cross examination is complete on written interrogatories. The view to the contrary expressed by the trial Court is clearly erroneous. In this view, the impugned order is not sustainable in law and must be set aside.

3. Allowing this revision, I set aside the impugned order and direct that the trial Court shall proceed to make fresh orders in accordance with law after keeping in view the observations made above.

4. The parties are directed to appear before the trial Court on 6th Oct. 1982.


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