MOUSELL AND CO LTD Vs. GHANSHYAMDAS JAMNADAS

JUDGEMENT

(1.) This is a somewhat embarrassing petition which arises out of a suit for the sale between the parties of a consignment of imported saris. In actual fact there was a cross action on the part of the defendants who were to take delivery of the goods, but at the hearing of, what I may call the main action, after the plaintiffs had called their evidence, the learned Judge presiding over the trial thought fit to make certain observations. They concerned the defendant and consisted, broadly, of a threat to sanction the defendant's prosecution for perjury if he gave evidence along certain lines. There are various descriptions of what happened during this incident. In the petition which is before me, which asks for the setting aside of the decree and for a new trial, this is how the incident was described: Paragraph 9.-" That after the witnesses on behalf of the plaintiffs were cross examined by my counsel, the learned Judge without giving your petitioners an opportunity to state their case, threatened to send your petitioners to jail, as soon as your petitioners would step into the witness box, whereupon your petitioner's counsel, Mr. P.N. Sen consented to a decree being passed for the full amount of the claim and costs.

(2.) In the affidavit which supports that petition what occurred is referred to as follows: With reference to the statements contained in para. 4 of the plaintiff's affidavit I repeat that the learned Judge did not give me any opportunity to place my case; whilst the cross-examination of the plaintiff was going on, the learned Judge threatened to send the deponent to jail as soon as he got me into the witness box. As a matter of fact the learned Judge told counsel for the deponent that his Lordship would himself be able to give sanction to prosecute under Section 476, Criminal P. C, and asked the assistance of the Registrar of this Court to have the Indian Penal Code and the Criminal Procedure Code ready.

(3.) Then the respondent's version of what occurred is in the affidavit of Mr. Fritz Grellsamer. He says this: After the cross-examination of myself and a broker witness counsel for the plaintiff company closed their case and thereupon Mr. P.N. Sen called a witness from the customs office to prove certain letters which were being proved when the Judge asked Mr. Sen as to whether he intended to call his client into the box. Mr. Sen said that he did upon which the learned Judge asked whether his client was going to deny the agreement spoken to by myself and the broker witness on behalf of the plaintiff to which Mr. Sen said that was so. Thereupon the learned Judge said that if on hearing the evidence given by Mr. Sen's client his Lordship came to the conclusion that he was not speaking the truth, his Lordship would not hesitate to take proceedings for the sanction of the prosecution of the witness. After that Mr. Sen was asked to proceed with the case and he did so to some extent.