BOMBAY HIGH COURT
S.J. Kathawalla, J.
Dhirajlal Alias Dhirubhai
Babaria and Anr. —Applicants
versus
Navinbhai C. Dave and Anr. —Defendants
Notice of Motion No.1428 of 2015 in Suit No.536 of 2011
Decided on 29.8.2017

IMPORTANT POINT
When a case involves a point of foreign law, while a Judge may require assistance in forming an opinion as to what the foreign law is, he certainly requires no assistance in applying the law so ascertained, to the facts before him.

Headnote:Evidence Act, 1872—Sections 45 and 46—Expert evidence on foreign law—Plaintiff-appellant seeking to enforce a Judgment of District Court Texas USA directing defendants to pay plaintiff a sum USD 7.5 million—Defendants sought to resist enforcement of judgment on various grounds including a plea that Texas Court did not have jurisdiction over Defendants—Defendants offered witness an attorney licensed to practice amongst others in State of Texas as an expert on Texas Laws—Objection as to portions of affidavit evidence of witness seeking to apply foreign law to the facts of case in which he was deposing—Scope of such evidence—Role of an expert is not to act as a Judge or Jury—His role is essentially to assist Court in forming an opinion upon a point of foreign law or science or art etc. etc.—Scope of evidence offered by an expert must necessarily depend on nature of evidence offered by him is to be applied.

       Held: The role of the expert as envisaged in the Indian Evidence Act is thus essentially to assist the Court in forming an opinion upon a point of foreign law or science or art or as to the identity of handwriting, or finger impressions. The question however, remains as to whether it would be the proper role of an expert to express an opinion not only on a point of foreign law, or science, or art, but also upon how his opinion on those aspects would bear upon the facts before the Court. It appears that this would depend very largely on the nature of the opinion that is sought from the expert examined as a witness in a proceeding. If an opinion is sought as to whether a signature appearing on a document is genuine, it is inevitable that a handwriting expert offered as a witness would compare the signature in question to the admitted signature of the alleged executant. Having done so, he would then express his opinion as to whether the signature/s are, in fact, identical. He would, in fact, be expected to do so. The reasons that he might offer in support of his opinion may or may not appeal to the Court which would be perfectly free to reject the view of the expert and to decide on its own course. Similarly, in a case where the identity of a victim or a perpetrator is in question, an expert in DNA evidence may undertake a comparative study of tissue samples and express an opinion on the basis of his examination. He would in this sense be undoubtedly expressing his view or opinion on one of the issues in controversy in the case in question. However, what would be the proper role of an expert on foreign law? In answering this question, it is important to keep in mind that a Judge is himself legally trained. The application of the law to a set of facts is within his or her special expertise. As such, when a case involves a point of foreign law, while a Judge may require assistance in forming an opinion as to what the foreign law is, he certainly requires no assistance in applying the law so ascertained, to the facts before him. This view of the proper scope of expert evidence on a point of foreign law is borne out by the plain language of Section 45 which reads in relevant part:

        “When the Court has to form an opinion upon a point of foreign law ... the opinions upon that point of persons specially skilled in such foreign law, ... are relevant facts.”

       The expert thus expresses his opinion on what the foreign law is, which is undoubtedly a relevant fact, but not on how that law is to be applied. (Para 9)

       The scope of the evidence offered by an expert must, as adverted to above, necessarily depend on the nature of the evidence offered by him. It is thus inevitable that a valuer who is examined as an expert witness will comment upon the value of the property in question in the proceedings. In fact, his evidence would not be of much help if he did not. However, the Judgment casts no light on what the proper scope of expert evidence on a point of foreign law would be. (Para 17)

       Mr. Narichania relied on the said paragraphs to contend that it was perfectly legitimate for an expert to offer his “opinion” or “conclusions”. While this is, no doubt true, these “opinion” or “conclusions” must of necessity be in respect of that aspect of the case on which the expert has been invited to depose. The Hon’ble Supreme Court in that case was considering medical evidence, a body of knowledge which the Court acknowledges to be beyond the experience of a lay person. While holding that in “ cases where the science involved is highly specialised and perhaps even esoteric, the central role of an expert cannot be disputed”, the Court was also careful to hold that it is not the province of the expert to act as a judge or jury. The act of adjudication is even in such a case the exclusive province of the court hearing the matter. The evidence of the expert is merely one of the aspects that the court will take into account in doing so. (Para 18)

       The reliance placed by Mr. Narichania on this Judgment is misplaced. As correctly submitted by the Learned Senior Advocates appearing for the Plaintiffs, the expert on German Law in that case was not predicting the outcome of the case KPPNAIR 32 NMS-1428 OF 2015 before him. He was predicting rather how a German Court is likely to decide a point of German Law on which there was no clear or decisive authority. That was a perfectly legitimate exercise, and one which an expert in foreign law would be entitled to undertake even in our courts. What he would not be entitled to do, however, is apply what he believes to be the foreign law in question to the facts of the case before him and to recommend a solution. That has always been within the exclusive province of the Court deciding the matter. This is to my mind is a point of distinction between foreign law as a body of learning and other scientific disciplines. A court, given its legal training, would be perfectly capable of applying foreign law, once it is ascertained, to the facts before it. However, in respect of other fields of inquiry, such as medicine, odontology or psychiatry, an expert witness may legitimately bring his learning to bear upon the facts of the case in expressing his opinion, which the Court would then proceed to weigh in the balance along with other factors in deciding the ultimate issue. Indeed, expert evidence of this nature would not be meaningful unless it bore upon the facts in question. Even here, however, the role of the expert is not, as the Hon’ble Supreme Court observes in Ramesh Chandra Agrawal v. Regency Hospital Ltd. & Ors.(supra), that of a judge or jury and the task of adjudication falls upon the court alone.

        If one were to test the evidence of Mr. Keel against this touchstone viz., an expert in foreign law would be entitled to express an opinion as to what the law is, but not apply that law to the facts before the Court, it quite clearly appears to me that the extracts from Mr. Keel’s Witness Statement, to which the Plaintiffs have objected, must be struck off from Mr. Keel’s Witness Statement. Mr. Khambata has been at pains to show me from the Affidavit of Mr. Keel that none of the portions of his testimony which relates to what the law in Texas is, has been objected to by the Plaintiffs. Similarly, the Plaintiffs have also not objected to those portions of the testimony of Mr. Keel where he comments on the evidence of Mr. Mealer and Mr. Jones, as long as he is disputing their view of what the Texas Law is. The Plaintiffs have sought to impugn as inadmissible only those parts of the Evidence which seek to comment on the merits of the case before this Court, and on the conduct of the Plaintiffs’ Advocates in Texas and generally on the merits of the case. These, it appears to me, are clearly beyond the legitimate scope of his testimony.

        As for the argument of Mr. Narichania that issues of relevancy ought to be relegated to the stage of final argument in the trial, it does not further the Defendants’ cause. As I have understood Mr. Khambata’s submissions, the Plaintiffs have sought to challenge portions of Evidence of Mr. Keel as being “inadmissible” and not as being irrelevant, which argument I have accepted. Even Mr. Narichania concedes that while issues of relevancy may be postponed to the stage of final arguments, issues of admissibility cannot be so postponed. The portions of Mr. Keel’s Evidence which are complained of as being inadmissible, would thus have to be struck off at this stage. (Paras 21 to 23)

       Result: Notice of Motion disposed off.