007-NLR-NLR-V-21-MARSDEN-v.-HABIBHOY.pdf
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Present: Bertram C.J. and Ennis J.
MABSDEN v. HABIBHOY.
59—D. C. {Inty.) Colombo, 46,928.
Commission to examinewitnesses— Discretion of Judge— Powerof
Supreme Court to review the discretion of District Judge.
The question whether or not a commission shall issue to examinewitnesses abroad isin the discretion of the Judge.But it isin
the power of the Supreme Court to review that discretion.
“ The question ineach case is a question of fact,on whichthe
Court must form its determination.”
T
HIS was an application for a commission to examine witnesses in
Bombay. The facts are set out in the following affidavit: —
/
Sydney George Alexander Julius, Proctor of the Honourable theSupreme Court of Colombo, make oath and say as follows:—
1. I am the defendant above named.
That the Honourable the Supreme Court has allowed my applica-tion that fresh evidencebe calledinthis case to prove the executionby .
theof an agreement with the late Ahemedbhoy Habibhoy in
April, 1913.
That it will be necessary to record the evidence of the following.witnesses:—
(1) The Superintendent of Stamps of Bombay, to produce bis booksfor 1913 showingthe saleof the stamped paperon whichthe
agreement sought to be proved was written.
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Jatashankar Kashiranan, the stamp vendor, who actually issuedthe said stamped paper.
Abdulrehman A. Dharmsey, who is the man who wrote the receiptfor Its. 60 given by plaintiff on the date the alleged agreementwas signed, and which payment is referred to in the agreement.
Pabanjee G. Mulle, the attesting witness to the alleged agreement.
Hurjeewan "Cullianjee,thebookkeeper who issued the money
and made the entries regarding the payment of Bs. 60 to theplaintiff, and also for the said stamped paper.
All the above witnesses are residents of Bombay, and none ofis under my control, and their attendance cannot be compelled
by process of this Court.
6. I am informed, and verily believe, that none of the said fivewitnesses,exceptthe bookkeeper, isintheemploy of thereceivers
appointed by the Bombay High Court in the administration suit for theadministration of the late Ahemedbhoy Habibhoy’s estate in BritishIndia. The fifth witness, the bookkeeper, does not know English, andthe books are voluminous and written by him in Gujerati, and can beproduced in Bombay, and it will probably not be necessary M forwardthe original books to this Court, but I can cause to be produced certifiedcopies and official translations of the relevant entries.
The first and second witnesses are, respectively, a Govern*
ment official and a Government licensedstamp vendor, The former
evidence will bepurely documentary,andhis books beingBombay
Government records cannot be sent to this Court. The latter is carry-ing on business as a licensed stamp vendor, and it would not be possible
i to induce him tocometo Colombo togiveevidence, and hisevidence
will be purely formal. ,
The third and fourth witnesses were employed in the late Ahemed-
bhoy Habibhoy’s office. The former is a grandson of the Ute Ahemed-bhoy Habibhoy, and I am informed by the receivers that he is unwillingto come to Colombo, and that they have no means of compelling him to doso. Thelatterleft the employmentofthelate AhemedbhoyHabibhoy
prior to his decease., and I anticipate that it will not be possible foreither the deponent or any of the deceased’s heirs or the receivers toinduce him to come to Colombo.
IMS.(2)
idareden v.Habibhoy(3)
(4)
(6)
4.
them
Sydney Julius.
The learned District Judge made the following order: —
After the judgment in this case the defendant, having discoveredfresh evidence, made an application to the Supreme Court,and the
judgment of this Court was set aside pro formd, and the case was sentback to this Court to enable the defendant to adduce the fresh evidenceand the Supreme Court directed that this Court could then adjudicateon the case after considering that evidence.
The defendant now applies for a commission to be issued to Bombayto record the evidence of certain witnesses with reference to the freshevidence which he was allowed to lead.
The plaintiff is a resident of Bombay. The defendant is a- solicitorpractising in this Court, and is sued as administrator of the estate ofone A, Habibhoy, also of Bombay.
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The action appears to have been brought in this Court as thedefendant is a resident in Colombo, within the jurisdiction of thisCourt (paragraph 9 of the plaint).
ThelateHabibhoywas theproprietorof theSpinning andWeaving
Mills at Wells watts, in Colombo, and plaintiff's cause of action wasin respect of an agreement with Habibhoy to employ the plaintiff asmanager of the mills.
Plaintiff was engaged by Habibhoy in Bombay. The agreement isallegedtohave beenenteredinto inBombay.In fact, theplaintiff
in his evidence admitted this.
The defendant has since the last trial found that. this agreement wasin writing, and it is to prove this agreement that defendant moves forthe commission.
The witnesses to the agreement are residents of Bombay, and cannotbe compelled to attend this Court. Three of the witnesses whomdefendant wishes to examine are to give evidence of a formal nature,and plaintiff does not seriously object to a commission in respect tothese witnesses.
Themostmaterialwitnesses,however,are thetwo witnesses to the
agreementitself:Dharmsey, whowrote the allegedagreement,and
Mulle, the attesting witness to the alleged agreement.
These two witnessesare notin the employ ofthe receiversappointed
by the Bombay High Court for the administration of Habibhoy'sestate in India. They were employed in Habibhoy's office at onetime. Dharmsey is a grandson of Habibhoy, but he is not willing tocome to Ceylon. Mulle left the employ of Habibhoy before Habibhoy’sdeath. Neither of these can be compelled to come to Ceylon.
The defendant is a stranger to these witnesses, and he is sued only inhis representative character.
The plaintiff, himself a resident of Bombay, has chosen the Ceylonforum.
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Maraden v.Habibhoy
Although it is an ordinary case, it will be the best course for witnessesto be examined before the Judge who has to adjudicate; still I considerthe circumstances of this case are such that the discretion of the Courtcan very properly be exercised in allowing a commission to issue toBombay to have the five witnesses examined. Plaintiff will be atliberty, after due notice, to have any witnesses, or the plaintiff himself,examined at Bombay.
I allow the defendant's application. Costs of this ’ application to becosts in the cause.
W. Wadswobth.
A. St. V. Jayawardene, for the appellant.
Bawa, K.C., and Hayley, for the respondent.
September 5, 1918. Bertram C.j.—
This is an appeal against an order of the District Court of Colombodirecting a commission to issue for the examination of- certainwitnesses in India. The case as regards the evidence which isrequired is a somewhat peculiar one, and has come before the Court
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1018.
Bkrtram
O.J.
Marsden v.Eabibhoy
under somewhat peculiar circumstances. It is a case in which theplaintiff has already recovered judgment, but in which that judg-ment has been set aside- pro formi; because of the alleged discoveryof fresh evidence subsequent to the trial. The evidence consistsof a document which, on the face of it, requires a most carefulexamination, not only as to the document itself, but also as to thecircumstances connected with it, inasmuch as it consists partly ofa typed agreement, and partly of two signatures appended to aseparate sheet of paper, which is itself undated. As I have said,it is clearly in the interests of • justice that all persons who canspeak to the circumstances under which it is alleged that thedocument was drawn up should be carefully examined. It is,moreover, in the interests of justice that they should be examinedbefore the Judge who has to try the case.(
There is another circumstance to which my attention has justbeen called by my Brother Ennis, and that is, that the signature ofthe witness to the document purports to be given for the purposeof attesting the signature of Mr. Ahemedbhoy Habibhoy, -whodoes not in fact sign the document; whereas the signature of theonly party who is supposed to have signed the document, namely,the plaintiff in this case, purports to be the signature of a witness.These points may no doubt be explained. But it is desirable, ifpossible, that the explanation should be given before the court oftrial.
We have been referred to numerous authorities. Some of theseauthorities deal with the question of judicial discretion. I do notthink those authorities assist us very much. Undoubtedly thequestion as to whether or not a commission shall issue is in thediscretion of the Judge in this sense, that the Judge is not bound toissue it merely because it is asked for. It’ is also in the discretionof the Court to issue it in another sense, that is to say, that theJudge has to weigh the circumstances and decide according to hisjudgment of those circumstances. But it is also in the power ofthe Supreme Court to review that discretion, and among the casescited are cases where that discretion has been reviewed.
The other authorities refer to the question of the issue Of a com-mission tc examine, a witness who is abroad, and who is said not tobe able or not to find it convenient to attend. There are verystrong cases both ways. There are two cases in which the opinionwas expressed that, in spite of the fact that it is most desirable thatthe Judge who has to try -an issue of fact should see the witnesses,nevertheless, a commission ought to issue. Those cases are Langenv. Tate 1 and In re Boyes, 2 where Fry L.J., in a case in which aclaim was made under very suspicious circumstances, and where itwas very desirable that a particular witness should be subjected toa searching- cross-examination, intimated that he would have been1 (1883) 24 Ch. D. 522.* (1882) 20 Oh. D. 760.
disposed, nevertheless, to issue a commission, but for the fact thatthe English rules with regard to cross-examination are not observedin France. On the other hand, there is an extremely strong ease inwhich a commission was refused (Berdan v. Greenwood 1), in whichthe Court, notwithstanding the fact that there was a good reason tobelieve that the attendance of a foreign witness at the trial couldonly be made at the risk of his life, declined to issue a commission.The only conclusion we can draw from these strongly conflicting'authorities is that the question in each case is a question of fact, onwhich the Court must form its own determination.
All that we have in this case is that there are certain witnesses inIndia, and that it is said that one of them is unwilling to come, andthat as to another, those who represent the plaintiff in this countryanticipate that it will be difficult to procure his attendance. Onthat Mr. Jayawardene very aptly draws attention to the case ofLawson v. Vacuum, Brake Go.x It is there said: “ If an applicationis made for the examination of a witness abroad, instead of hisattending in this country to give evidence at the trial, it is the dutyof the party making that application, when making it, to bringbefore the Court such circumstances as will satisfy the Court thatit is for the interest of justice that the witness should be examinedabroad.” The judgment from which that passage is cited goes onto criticise the vagueness of the evidence in which the applicationis supported. The evidence in this case is certainly not less vaguethan in the case of Lawson v. Vacuum Brake Go .* On the contraryit is distinctly more vague than in that case.
Under the circumstances, I do not think that the respondents tothis appeal have satisfied the onus which lies upon them to supporttheir application by definite and forcible evidence.
I am of opinion that, with regard to the third and fourth witnesses,their attendance in Colombo is required in the interests of justice,and as regards the fifth witness, who is in charge of the Gujeratibooks, and probably has no personal knowledge of the allegedtransaction. I think, like' that of the other witnesses, his evidencemight well be taken on commission. I am, therefore, of opinionthat the order of the District Judge should be varied in the mannerI have indicated.
The appeal should be allowed, with costs.
Ennis J.—I agree.
. Appeal allowed. i
i (1880) 20 Oh. D. 764 (footnote).
«(1884) 27 Ch. D. 137.