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Civil Miscellaneous Applications Nos. 1007 and 2501 of 1981 in Civil Suit No. 1284 of 1980, heard on 1st February, 1984.

---O. VI, rr. 4 & 5 Defendant asking plaintiff to disclose better and further particulars with regard to machines in respect of which a patent claimed in suit Particulars mentioned in plaint stated to be read with Annexure F' to plaint and Annexure running into several pages Besides dealing with peculiarity of mechanism patented under laws in Pakistan several other details also men tioned therein Plaintiffs directed to specifically mention those particulars and peculiarities of mechanism of machines which according to him protected under patent Held, in order to confine parties to specific case it was necessary that particulars of pecu liarity in mechanism protected by way of patent should be specifi cally mentioned in pleadings of parties. [Pleadings].

-- O. XXVI, rr. 4 & 5 Application for issue of commission No hard and fast rule, held, could be laid down for grant or refusal of an application under O. XXVI, r. 4 Court has discre tion in this regard which is to be exercised in a judicious manner taking into consideration all relevant circumstances of each case Broad principles to be kept in view by Court while granting or refusing an application for examining a witness resident of abroad on commission or interrogatories, stated.

Sultan All v. Nur Hussain AIR 1949 Lah. 131 and Bangladesh Shipping Corporation v. s. s. Nedon P L D 1981 Kar. 663 rel.

--- O. XXVI, rr. 4 & 5 Application of defendants for issue of commission Interrogatories suggested by defendant some of questions proposed of highly technical nature and if such exami nation allowed to come on record plaintiff would not be able to cross-examine witness effectively by means of cross-interroga tories Witness proposed to be examined in case appearing to be a material witness and defendants having no control over him Evidence of witness not wholly oral and number of documents filed in case could only be proved through this witness Defen dant neither delaying application for issuance of commission nor making attempt to detract proceeding by making application Defendant agreeing to modify interrogatories on suggestion from Court so as to exclude such portion of evidence of witness as relating to expert opinion Application for examination of witness (resident of Germany) granted on interrogatories as modified.

Iqbal Qazi for Plaintiffs.

J. H. Rahmatoola for Defendants.

C. M. A. No. 1007/81. This application under Order VI, rules 4 and 5 read with section 151, C. P. C. is filed by the defendant No. 1 for an order against the plaintiff to disclose better and further particulars with regard to the machines in respect of which a patent is claimed in the suit. I have heard the learned counsel for parties on this application. The main contention of Mr. Iqbal Kazi, the learned counsel for the plaintiffs is that particulars are mentioned in paragraph 5 of the plaint which is to be read along with the document of patent namely, Annexure F to the plaint. Annexure F to the plaint itself runs into several pages and besides dealing with the pecularity of the mechanism which is being patented under the laws in Pakistan there are several other details mentioned in the said document. In order to confine the parties to the) specific case it is necessary that the particulars of pecularity in mechanism which has been protected by way of patent should be specifically mentioned in the pleadings of the parties. After I have heard the learned counsel for the parties at length Mr. Iqbal Kazi, agrees that he will mention separately the particulars of peculiarity of mechanism of the machine which has been protected under the patent granted in fauour of the plaintiffs under Pakistani laws. These specifications according to Mr. Iqbal Kazi, are mentioned in paragraphs 2 to 4 of the patent docu ment which is Annexure F to the Plaint. I accordingly direct the plaintiffs to specifically mention those particulars and peculiarities of mechanism of the machines which according to plaintiff are protected under the aforesaid patent. The particulars to be submitted within fortnight from today. The application is disposed of accordingly.

C. M. A. No. 2501/81. This application under Order XXVI, rules 4 and 5 is filed by the defendant No. 1 to examine a witness on commission in Germany. The application is strongly opposed by Mr. Iqbal Kazi, the learned counsel for the plaintiff, who contends that from the reading of the interrogatories suggested by the defendant it would appear that an expert opinion is sought from the witness on the working of machine, It is contended by the learned counsel that if this witness is allowed to be examined on commission the plaintiffs will be seriously prejudiced as his client cannot foresee the answers which will be given by the witness in reply to the interrogatories and as such the witness cannot be effectively cross-examine on cross-interrogatories. The learned counsel has relied on the cases of Sultan Ali v. Nur Hussain (A I R 1949 Lah. 131) and Bangladesh Shipping Corpora tion v. Ss. Nedon (P L D 1981 Kar. 663) to oppose grant of application under Order XXVI, rule 4, C. P. C. After carefully considering the above cases I am of the view that no hard and fast rule can be laid down for grant or refusal of an application under Order XXVI, rule 4, C. P. C. The Courts have dis cretion in this regard which is to be exercised, in a judicious manner taking into consideration all the relevant circumstances of each case. Nevertheless, the following broad principles may be kept in view by the Court while granting or refusing an application under Order XXVI, rule 4, C. P. C. for examination of a witness resident abroad, on commission 9 on interrogatories ;-‑

(i) That the examination of the witness is material on any of the issues raised in the case;

(ii) That application for examination of witness on commission is not delayed one and it is not filed to delay or detract the pro ceedings in Court ;

(iii) That the party applying for examination of witness on commis sion must satisfy the Court that he has no control over the witness and that personal examination of witness is not possible ; and

(iv) That the Court must satisfy itself that there is no oppression on the part of the party making the application and that the other party whether plaintiff or defendant will not be prevented from putting his case fairly before the Court at the trial.

Under point No. (iv) if the Court finds that the evidence of the witness proposed to be examined on interrogatories is going to be wholly oral testimoy and the other side cannot effectively cross-examine the witness on cross-interrogatories, the Court may refuse to issue the commission.

Keeping in view the above-stated principles I have examined the' interrogatories suggested by the defendant for examination of witness on commission. No doubt in the interrogatories suggested by the learned counsel for the defendant some of the questions proposed are of highly technical nature and Mr. Iqbal Kazi, rightly pointed out that if such examination is allowed to come on record, the plaintiff cannot effectively cross-examine the witness by means of cross-interrogatories. It is how-ever not disputed that the witness proposed to be examined in the case is a material witness and the defendants have no control over him. The evidence of this witness is also not wholly oral as there are number of, documents filed in the case which can only be proved through this witness. The application for issuance is also not delayed and there is nothing on record to show that the defendant has attempted to delay or detract the proceeding by making this application. On my suggestion the learned counsel for the defendant agreed to modify the interrogatories so as to exclude such portion of evidence of witness which relates to expert opinion. I will, therefore, in consideration of the above circum stances grant the application for examination of the above witness in Germany on interrogatories subject to the condition that the present interrogatories suggested by the defendant will be modified so as to confine it to the following points only:

(1) That the interrogatories will confine only to the facts relat ing to manufacture, production and sale of the machine in Germany, both prior and after the date of grant of patent in favour of the plaintiff in Pakistan.

(2) That only such questions may be included in the interrogatories by the defendant which relate to the proof of import documents of machines in Pakistan, correspondence between the parties, objection if any filed by the Germany Company against the grant of patent to the plaintiffs or proof of any other relevant document to the controversy in the suit.

Subject to the above observations the application under Order XXVI, rules 4 and 5 is granted. The commission will be issued in accordance with the law after interrogatories are submitted by the defendants and settled by the Court and cross-interrogatories are filed by the plaintiff. The revised interrogatories to be filed within one month.

M.Y.H. Petition granted.

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