NARMADA CEMENT CO. LTD. vs HOTEL NANDADEEP

THE revision petitioner''s grievance is that he has been denied the opportunity to cross-examine the crucial witness, an expert, who had given evidence regarding the quality of cement supplied by the petitioner to the Respondent No. 1. THE District & Sessions Judge had, in pursuance of the directions of the State Commission, appointed a local Court Commissioner at Sangli to take the evidence of the expert Dr. Krishnaswamy, Professor in Walchand Engineering College, Sangli, who had given a report of the quality of the cement after examining a few pieces of the cement slabs and cement powder which had gathered on the slabs. THE petitioner appointed a local lawyer at Sangli to attend the routine work on his behalf before the local Commissioner. On the date fixed for the purpose of cross-examining the expert witness viz., the 8th November, 1990 no hearing could be held due to unavoidable absence of the expert

THE local Commissioner announced on 8th November, that the fresh notice of hearing would be issued after 25 days. On the 15th November, 1990 he proponed the hearing to 25th November 1990 on the request of the expert witness that he would not be free from professional work from the 21st November, 1990 for the purpose of cross-examination. The petitioner contends that the preponement was done by the local Commissioner arbitrarily and unilaterally by reversing his own order of 8th November, 1990 that the next date of hearing for examination of the expert would not be held before the expiry of 25 days from the 8th November, 1990.

Further, the petitioner contends that no proper notice of preponement was served on him. Contrary to his request made on the 8th November that sufficient advance notice be given to him so that he could arrange for transport of his expert and lawyer from Bombay to Sangli and that the notice be served on the petitioner at Bombay, the notice was sent to the local office of the petitioner at Sangli and was received by his factory at Sangli on 20th November, 1990-5 days before the date of hearing. The petitioner requested for adjournment on the ground that he could not make arrangement for his expert and the advocate based in Bombay to attend on the 25th at Sangli but it was turned down by the local Commissioner.

THE Petitioner further submitted that the local lawyer appointed for appearing on his behalf could not represent the petitioner properly as he would not be briefed nor he could be a substitute for the expert - an architect who could examine Dr. Krishnaswamy of the Walchand Engineering College. THE petitioner had urged before the State Commission that he had been denied the opportunity to cross-examine the expert witness of the respondent. But the Commission came to the conclusion that there is no substance in the grievance of the petitioner. After examining the record and hearing the Counsel appearing for the petitioner, we feel that the petitioner had not been afforded an effective opportunity to cross-examine the expert witness of the respondent and that as a consequence thereof the State Commission had come to rely the untested evidence of the expert. There is evidence to show that the local Commissioner had acted arbitrarily and unfairly in preponing the date of hearing, is not serving notice on the party at Bombay and in refusing to give reasonable time to hold a hearing at Sangli. It was also unfair to expect an un-briefed lawyer to undertake the examination of an expert without the help of another expert. We, therefore, feel that the principles of natural justice were not observed so far as the petitioner was concerned as he had not been given an opportunity to undertake the cross-examination of the expert. We note that the State Commission has specifically considered the question whether the Petitioner here has had an opportunity to cross-examine the expert witness and came to the conclusion that there was no substance in the grievance of the petitioner. We however, add to what we have said earlier that justice should not merely be done but also must appear to be done. With this observation we set aside the order the State Commission and remand the case back to the State Commission for affording an opportunity to the petitioner to cross-examine the expert witness of the respondent No. 1 and to dispose of the case afresh in the light the evidence as it finally stands. Order accordingly.