DOLBY INTERNATIONAL AB & ANR. v. DAS TELECOM PRIVATE LIMITED & ORS.

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 2018:DHC:779 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 crossexamination 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 Courtroom 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 crossexamination 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 crossexamination 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 crossexamination 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 crossexamination of the witnesses of the plaintiffs.

FEBRUARY 01, 2018/ib VALMIKI J. MEHTA, J