Ghulam Rasool Khan vs Wali Khan

In this case, the plaintiff sought to examine the Finger print 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 A. I. R. 1934, Patna, 50, (Ram

Singh and anr. Versus 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.

In Ram Singh's case (supra), it has been held to when hand writing expert is to be examined on commission by written, interrogatories, the party

entitled to crossexamine 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 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 crossexamine the witness orally. Accordingly it was incumbent upon the trial court to enquire from the

defendant' whether he wanted to crossexamine 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 given him an

opportunity to crossexamine the witness orally. On the other hand, if the defendant had stated that he would like to crossexamine 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 crossexamination of a witness would be permissible after his examination and crossexamination

is complete on written interrogatories.

The view to the contrary expressed by the trial court is clearly erroneous. In this view, the impugned order 4 is not sustain able in law and must

be set aside.

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.

The parties are directed to appear before the trial court on 6th of October, 1982.