IMPORTANT POINT
Cross-examination could be conducted with the appointment of the court commissioner at residence of litigant in view of physical incapacity of litigant.

JUDGMENT

Ravindra V. Ghuge, J.—I have heard the Petitioner in person on 17.10.2018 at length. Considering that his submissions were concluded at rising time, this matter was posted today for passing orders.

2. The Petitioner in person stated that since his submissions have concluded, he be exempted from appearing today in the court.

3. The request put forth by the Petitioner is that the Trial Court should direct the advocates of the defendants to prepare a list of written questions in cross-examination and they should tender the said questions to the Petitioner witness in the form of interrogatories under Order 11 Rule 1 of the Code of Civil Procedure. Further request is that this Petitioner would prepare his answers to the said questions and he would tender those answers in written form before the Trial Court as his cross- examination. Such request was put forth before the Trial Court below Exhibit 41 and the same has been rejected by the impugned order dated 15.09.2018.

4. The Petitioner in person submits that he entered his affidavit in lieu of examination-in-chief under Order 18 Rule 4 of the Code of Civil Procedure on 18.08.2018 in RCS No.69/2017. After being administered the oath for verification and the affidavit in lieu of examination-in-chief was taken on record, the Petitioner was expected to face cross-examination on 03.09.2018.

5. He moved the application Exhibit 41 on 06.09.2018 stating that the Trial Court should direct the advocates for the defendants to prepare their interrogatories, which infact are questions in cross-examination and such written questions be delivered to the Petitioner so that he can prepare his written answers and by tendering his answers in the court, such answers would form the part of his cross-examination. It is orally submitted before me that after the Petitioner submits his written answers, his cross-examination should be closed and there should not be an actual cross-examination in oral question and answer form before the Trial Court.

6. Reliance is placed on the following provisions, which read thus:—

(a) Order 11 Rule 1 of the Code of Civil Procedure:—

“Order XI: Discovery of inspection.

1. Discovery by interrogatories:—

In any suit the plaintiff or defendant by leave of the Court may deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties, and such interrogatories when delivered shall have a note at the foot thereof stating which of such interrogatories each of such persons is required to answer:

Provided that no party shall deliver more than one set of interrogatories to the same party without an order for that purpose:

Provided also that interrogatories which do not relate to any matters in question in the suit shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness.”

(b) Section 151 of the Code of Civil Procedure:—

“151. Saving of inherent powers of Court:- Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the Court.”

(c) Paragraphs 84, 85 and 86 of Chapter VI of the Civil Manual:—

“84. Other means by which the Court may ascertain what is necessary in order to frame issues are interrogatories and the discovery and inspection of documents (Order XI), admissions (Order XII) and the production of documents (Order XIII).

The Judges and lawyers should make themselves thoroughly acquainted with these provisions and endeavour to make use of them.

Attention is invited to the position of these Orders in the Scheme of the Code. They proceed the Order relating to issues. This fact considered along with the provisions of Rule 20, Order XI, shows that according to the Scheme of the Code, all matters must be got clarified before the issues are settled.

85. The Court should see that discovery is given and admission