Witness deposing defendants without any written authority from defendants
SSng Aulakh
(Querist) 17 February 2015
This query is : Resolved
K.a.Experts,
I am appearing in person in Bombay High court as Plaintiff. My suit against my employer company for salary and victimisation is in final stage of hearing. I am cross examining a witness who is deposing on behalf of defendants without written authority from them. He is an employee of one of the defendant companies against whom I have this matter but this witness does not have any written authority from either of the defendant company to depose on their behalf. Defendants companies' Advocates have just planted this witness.
Please go through the ist day cross examination of this witness by me, and advice me what should be my next step.
Shall I cross examine him further or discard his deposition. Please tell me what the law says to:,
If I discard deposition of this witness on the basis of not having authority and do not cross examine him further,
then what about his affidavit of evidence which he has filed under oath denying all my contentions in the Suit ?
Will his Affidavit be also automatically discarded by court under law ?
It should not happen that the court takes his submissions in his affidavit on face value, and deny reliefs to me since I have not cross examined him ?
Regards
Capt Sukhdev Singh
First day cross examination of the unauthorized witness goes as below:
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO.527 OF 2005
Capt. Sukhdev Singh ...Plaintiff vs The Great Eastern Shipping Co. Ltd. & Ors. ...Defendants
...... Capt. Sukhdev Singh in person, for the Plaintiff. Mr. Raj Patel, Counsel with Ms. Viloma Shah & Mr. Dhiren Durante, i/b. M/s. Hariani & Co., for Defendant Nos. 1 and 3. ....
CORAM : S.C. GUPTE, J.
DATED : JANUARY 30, 2015 P.C. : .
The examinationinchief of the Defendants' witness after the witness is sworn
:Name: Adil K. Anklesaria Age : 49 years Occupation: Assistant Manager Address : GOL Offshore Ltd., Energy House, 81, Dr. D.N. Road, Mumbai � 400 001.
I tender my affidavit of evidence in lieu of examinationinchief dated 19 January 2015. The signature contained in the affidavit is of mine. The contents of this affidavit are true and correct.
The crossexamination by the Plaintiff in person :
Q.1: You have stated in this affidavit that your deposition is based on your personal knowledge. Where have you gained this knowledge?
A: I have gained my knowledge from the records maintained by my office.
Q.2: Are you fully aware about this matter?
A: Yes.
Q.3: Which are the records that you have gained the knowledge from?
A: My office has maintained a personal file of the Plaintiff. I have gained my knowledge from that file.
Q.4: Can you produce that file before the Court?
A: Yes.
Q.5: When will you produce that file?
A: I can produce it on the next date.
Q.6: What are the details in that personal file? A: All personal details concerning the Plaintiff are there in the file.
Q.7: Is it correct that all the knowledge you have about the case is from the personal file of the Plaintiff maintained in your office?
A: Yes.
Q.8: Are you making this deposition on behalf of Defendant Nos. 1 and 3?
A: Yes.
Q.9: Have you been authorised by Defendant Nos. 1 and 3 to depose on their behalf?
A: I have been authorised by Defendant No.3.
Q.10: Can you produce a document of authorisation?
A: I have been in the service of the Company and have been called here to give evidence.
Q.11: So you do not have an authorisation on behalf of Defendant Nos. 1 and 3 to depose?
A: I have no such written authorisation.
Q.12: So what is your interest in coming here and deposing on behalf of Defendant Nos. 1 and 3?
A: I am an exemployee of Defendant No.1 and the present employee of Defendant No.3.
Q.13: Are you aware that if a witness makes a false deposition or gives a false evidence whilst in the witness box, he can be charged with the offence of giving false evidence?
A: Yes.
Q.14: What are the reasons for your resignation from Defendant No.1 Company?
A: I resigned for better prospects.
Q.15: After leaving Defendant No.1 Company, where were you working?
A: I was working in Jubilient Enpro Ltd.
Q.16: Why did you leave Jubilient Enpro Ltd. and join Defendant No.3 Company?
A: Because I was given a better offer by Defendant No.3 Company.
Q.17: Do you have anything to show that you actually joined Jubilient Enpro Ltd. in between your services with Defendant No.1 and Defendant No.3 Company?
(The question is objected to by the learned Counsel for Defendant Nos. 1 and 3. The objection is overruled).
A: I can try and get the relevant documents.
Q.18: When will you produce these documents?
A: I shall try to produce them on the next occasion.
Q.19: Since you were not there either with Defendant No.1 or Defendant No.3 between August 2005 and May 2007, from where did you gain knowledge about the events that transpired between August 2005 and May 2007?
A: I gained knowledge concerning events during this period from the personal file maintained by my office in respect of the Plaintiff.
Q.20: Who has prepared the affidavit of evidence that you have signed?
A: The affidavit is prepared by my Advocates on my instructions.
(This answer is recorded by the judge himself, since the witness remained mum and did not answered anything)
Q.21: Do you mean to say that whatever knowledge you have about this particular case and about the Plaintiff is gathered only from the personal file maintained by your office?
A: I was working with Defendant No.1 from April 1998 to August 2005. During this period, when I was working as Fleet Personnel, the Plaintiff also worked with Defendant No.1 Company and I also have personal knowledge of signing on and signing off of the Plaintiff during this period.
Stand over to 4 February 2015 at 3.00 p.m.
( S.C. GUPTE, J. )
(later adjourned to 27 Feb 2015)
P. Venu
(Expert) 18 February 2015
Is the witness still in service with defendant no.3>
SSng Aulakh
(Querist) 18 February 2015
Yes Sir, he is still in services of Defendant No.3
SSng Aulakh
(Querist) 18 February 2015
Dear Experts Please Reply to my query.
P. Venu
(Expert) 18 February 2015
The aspect you are highlighting is a mere technicality. Perhaps, a more relevant aspect is whether the witness is fully conversant of the material facts so that he can present the best evidence available with the 3rd Respondent. I suggest the cross examination could be more focused in this respect. A crucial issue in this context is the written statement filed on behalf of this respondent and the pleadings therein. If the WS had been affirmed by someone else, you may probe the entire pleadings from this angle. Generally, it is expected that the person who has affirmed the pleadings should stand on the witness box and adduce the evidence in support.
T. Kalaiselvan, Advocate
(Expert) 19 February 2015
Whether the witness is an additional witness from the defendant side or main witness of the defendant, if so, if he is representing the defendant company, he should be authorised by the defendant company to defend the case by an authorisation letter or a power of attorney. If this procedure is not followed, you could have objected to his chief examination itself, why did you not do that?, though you appear as party in person and do not want to engage the services of an advocate, atleast you could have consulted some advocate outside the court for handling the case and the procedures therein to be followed.
SSng Aulakh
(Querist) 20 February 2015
Dear T. Kalaiselvan sir,
Thanks very much for your intrest and expert advice. I am to add that:
After the witness agreed in his cross that he does not have any authority from any of the Defendants. I looked toward the Judge and wanted court's directions. The judge verbally directed me saying
"you can cross examine him"
Being a party in person and going with advice of the judge, I asked him few more questions as shown above. It is just the beginning of the cross and the subject matter is not yet touched or started.
Since this witness He has denied almost all my contentions that I have made in my plaint and my Affidavit of evidence of my Suit.Please advise what next and specifically elaborate and advice me on following point:
1. Shall I cross examine him further or discard his deposition. Please tell me what the law says to:,
i. If I discard deposition of this witness on the basis that he not having authority from defendants and do not cross examine him further,
a. then what about his affidavit of evidence which he has filed under oath denying all my contentions in the Suit ?
b. Will his disposition Affidavit be automatically discarded by court under law ?
c. It should not happen that the court takes his submissions made in his affidavit on face value, and deny reliefs to me since I have not cross examined him further ?
Regards
Capt Sukhdev Singh
SSng Aulakh
(Querist) 20 February 2015
Experts please advise me. I shall act further as per experts opinion advise.
Biswanath Roy
(Expert) 21 February 2015
When the Hon'ble Court allowed him for cross examination and directed you to continue your cross you can proceed further to examine him. But during cross examination you may interrogate as follows,-
Q.1. Do you know and well aware with the facts and circumstances of this case, if so, how?
Q.2. Are you authorised by the Company to depose on their behalf which is binding upon them? If so, can you show before the court that the company authorised you so to do and that your statement is the statement of the company and the company ratify the same as their own statement?
SSng Aulakh
(Querist) 21 February 2015
Dear Shri Roy Sir
Thanks very much for your valuable reply.
(I) The witness in his first day cross has replied to the "suggested question.1" as is given below:
Q.1: You have stated in this affidavit that your deposition is based on your personal knowledge. Where have you gained this knowledge?
A: I have gained my knowledge from the records maintained by my office.
Q.2: Are you fully aware about this matter?
A: Yes.
Q.3: Which are the records that you have gained the knowledge from?
A: My office has maintained a personal file of the Plaintiff. I have gained my knowledge from that file.
Q.4: Can you produce that file before the Court?
A: Yes.
Q.5: When will you produce that file?
A: I can produce it on the next date.
Q.6: What are the details in that personal file?
A: All personal details concerning the Plaintiff are there in the file.
(II) The "Suggested Question no. 2": He has partially replied in his first day cross as below:
Q.8: Are you making this deposition on behalf of Defendant Nos. 1 and 3?
A: Yes.
Q.9: Have you been authorised by Defendant Nos. 1 and 3 to depose on their behalf?
A: I have been authorised by Defendant No.3.
Q.10: Can you produce a document of authorisation?
A: I have been in the service of the Company and have been called here to give evidence.
Q.11: So you do not have an authorisation on behalf of Defendant Nos. 1 and 3 to depose?
A: I have no such written authorisation.
Q.12: So what is your interest in coming here and deposing on behalf of Defendant Nos. 1 and 3?
A: I am an ex-employee of Defendant No.1 and the present employee of Defendant No.3.
however your "suggested question No.2" I shall get further elaborated reply from him since his replies i.e. shown above does not clarify this very fact fully.
Experts are requested to help me by your valuable expert advise.
SSng Aulakh
(Querist) 22 February 2015
Experts please note that the defendant companies with corrupt practices steered this matter to different direction which ended up into contempt of court. At an early date defendants have faced petition for contempt of court in this matter, the civil CP filed by me is converted to criminal CP by hon'ble shri justice Dharamadhikari. The division bench hearing this (Cr. contempt petition 07 0f 2012) verbally informed me that sending contempt notice to the contemners is prerogative of the court, hence does not want to send contempt notice to corporation and CP was closed. Adv. Gen. Maharashtra by his letter has also in the view that contempt of court has been committed by defendants of this suit by scandalizing authority of court by interfering in course of justice and giving wrong undertaking to court under oath.
What I am interested my legitimate dues from my employer honorably and justice.
Presently advocates / Defendants has again resorted to the same old malpractices. When i cross examine this unauthorized third part witness fully, as they are now forcing me to do, again true facts about contempt of the court committed by defendants are going to surface, which will again be an embarrassment to all.
please advise what should be my course of action.
Regards
Capt Sukhdev Singh
Plaintiff in person
Mobile:09821291594
