Report No. 185

Section 60

Section 60 says that 'oral evidence must be direct'. It reads as follows:

"60: Oral evidence must, in all cases whatever, be direct; that is to sa.-

- if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;

- if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;

- if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;

- if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:

Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treaties if the author is dead or cannot be found, or has become incapable of giving evidence or cannot be called as a witness without an amount of delay or expense which the court regards as unreasonable:

Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the court may, if it thinks fit, require the production of such material thing for its inspection."

The second proviso refers to what is called "real evidence"

In the 69th Report, an additional proviso was suggested (see para 25.36, 25.37) to say that the mandatory requirements to examine an expert is a waste of time and that instead, it should be left to the discretion of court.

In this context, we may point out that in England too, there has been serious criticism of abuse of the right to examine experts, resulting in unnecessary delay in trials in civil courts, "in the result, the whole of the procedure for the admission of expert evidence in civil cases has been fundamentally transformed by the changes wrought by the Civil Procedure Rules (CPR) introduced in the wake of Lord Woolf's two reports entitled Access to Justice (Interim Report, June 1995 and Final Report, June 1996). In England, in small claims track, no expert can be examined. Separate rules are made for 'fast track' and 'multi track' cases (see Phipson 1999, 15 Edn., paras 37.19 to 37.30).

We, therefore, fully endorse the recommendation in the 69th Report (see para 25.37). The provision proposed does not cause any injustice because the right of a party to summon the expert for cross-examination will remain unaffected. If necessary, it could be expressly provided that the parties shall have a right to call the witness for cross-examination. Where the opinion of the expert is one tendered by a party himself then, of course, he will not have any such right subject, of course, to section 154. With this recommendation in the 69th Report, we fully agree.

The proposed proviso also refers to cases where the expert is a government employee.

The 'rough draft' proposed reads as follows: (see para 25.37 of 69th Report)

"Provided further that the opinion of an expert expressed in writing, and the grounds on which such opinion is held, may be proved by the production of such writing, if the following conditions are fulfilled, namel.-

(i) the expert is an employee of the government or of a local authority or of a university or other institution engaged in research and has been consulted by the court either of its own or on application,

(ii) the expert recorded the opinion in the course of his employment, and

(iii) the court, having regard to the circumstances of the case, considered it desirable in the interests of justice that the opinion of the expert and the grounds of his opinion should be proved by production of such writing, subject to the right of either party to summon the expert for cross-examination."

But, we feel that the 'rough draft' is some what defective as it nowhere refers to the discretion of court. Instead, we redraft the proposed proviso as follows:

"Provided further that the opinion of the expert expressed in writing, and the grounds on which such opinion is held, may be proved without calling the expert as a witness, unless the Court otherwise directs, having regard to the circumstances of the case, where the exper.-

(i) is an employee of the Central or State Government or of a local authority or of a University or other institution engaged in research and has been consulted by the Court on application of a party or on its own motion; or

(ii) recorded the opinion in the course of his employment, subject however to the right of either party to summon the expert for the purpose of cross-examination."

Section 60A: (as proposed in the 69th Report)

This section was proposed in the 69th Report in regard to "evidence of age" but the Commission gave up the proposal as it felt that the provision will be abused. We respectfully agree.