Whether a witness can be confronted in cross examination by showing document of which he is neither signatory not scribe?

Order 7 Rule 14(3), Order 8 Rule 1A(4) and Order 13 Rule 1(3) all provide that the rule for filing a document alongwith pleadings and/or before the settlement of issues does not apply to documents with which a witness may be confronted in his cross examination. The question which arises is as to with what documents a witness can be confronted; whether with those mentioned in Sections 144 and 145 of the Evidence Act only or with others also. In the opinion of this court, no limitation can be placed on the documents which can be confronted to the witness. The present case itself gives a classic illustration in this regard. The witness is an architect who claims to have inspected the property and reported that the tenants have carried out unauthorized changes in the property and which changes have lowered the value, utility or security of the building. The endeavour of the cross examining party would be to falsify the said report. The same can be done by showing to the said witness the photographs or other material which would run contrary to the testimony or report of the said witness. Such material would not necessarily be one to which the witness would be a signatory or a scribe. 

IN THE HIGH COURT OF DELHI

C.M.(M) Nos. 692, 702, 9953 and 10057/2009

Decided On: 30.11.2009

 Surinder Kumar Bajaj  Vs.  Sheela Rani Pasricha

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw, J.

Citation: 2009 SCC Online Del 3855

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Whether it is permissible for landlord to take Architect with him at the time of inspection of tenanted premises?

For the said purpose, it would be necessary for the plaintiff to ascertain the exact area in occupation of the defendants and for the said purpose he has right to enter upon the premises and inspect the area in occupation of the defendants. In doing so, he would be entitled to take his own representative to measure the area. The landlord would not be an expert to measure the premises. The person who is expert to carry out measurement such as the surveyor would be required to be taken by the landlord to inspect the premises for performing his obligation of providing the same carpet area in occupation of the tenant in the new building. The landlord will have to satisfy himself of the exact area in occupation of the tenant so as to provide for the same. If Section 28 is interpreted in a manner that the landlord cannot take any other representative along with him, then it would render the said provision ineffective and redundant as the purpose of inspection would not be achieved. Even if to satisfy himself the plaintiff measures the tenanted premises through his surveyor, the said measurement carried out by the surveyor will not be akin to and on the same pedestal as that of the Court Commissioner. The tenant being in occupation of the premises, he can get his area measured through his expert. There is no prohibition for him. In the present case, the surveyor allowed to be taken by the plaintiff is not in the capacity of a Court Commissioner but the Court has only granted leave allowing the plaintiff to exercise his right under section 28 as the suit is pending before the Court.

17. In the present case, the plaintiff had given a notice to the defendant to allow him to inspect the premises along with his architect/surveyor (the said fact is denied by the defendants) and as the suit is pending the plaintiff thought it fit to obtain leave of the Court and the same has been granted by the Court. However, the said order of the Court cannot be construed of having appointed a Court Commissioner nor the measurement carried out by the plaintiff through his surveyor would be construed as a measurement carried out by the Court Commissioner. The measurement carried out by the surveyor of the plaintiff would be for satisfaction of the plaintiff to ascertain exact area in occupation of tenant. It will be for the plaintiff to prove his case with all corroborative evidence.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 2677 of 2013

Decided On: 23.08.2013

 Suresh Manoharlal Jumani Vs. Aasia Management & Consultancy Pvt. Ltd.

Hon'ble Judges/Coram:

S.V. Gangapurwala, J.

Citation:2014(1) BomCR88

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When architects are liable to pay damages for their professional negligence?

Regarding the duty of an architect Windeyer J said in Voli v Inglewood Shire Council
(1963) 110 CLR 74 at 84:
An architect undertaking any work in the way of his profession accepts the
ordinary liabilities of any man who follows a skilled calling. He is bound to
exercise due care, skill and diligence. He is not required to have an
extraordinary degree of skill or the highest professional attainments. But he
must bring to the task he undertakes the competence and skill that is usual
among architects practising their profession. And he must use due care. If he
fails in these matters and the person who employed him thereby suffers
damage, he is liable to that person. This liability can be said to arise either
from a breach of his contract or in tort.22
[52] I have considered sections 9, 10, 11 and 12 of the Civil Liability Act 2003. These
sections provide:-
9 General principles
(1) A person does not breach a duty to take precautions against a risk of
harm unless—
(a) the risk was foreseeable (that is, it is a risk of which the
person knew or ought reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of
the person would have taken the precautions.
(2) In deciding whether a reasonable person would have taken
precautions against a risk of harm, the court is to consider the
following (among other relevant things)—
(a) the probability that the harm would occur if care were not
taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
10 Other principles
In a proceeding relating to liability for breach of duty happening on or
after 2 December 2002—
(a) the burden of taking precautions to avoid a risk of harm
includes the burden of taking precautions to avoid similar
risks of harm for which the person may be responsible; and
(b) the fact that a risk of harm could have been avoided by doing
something in a different way does not of itself give rise to or
affect liability for the way in which the thing was done; and
(c) the subsequent taking of action that would (had the action
been taken earlier) have avoided a risk of harm does not of
itself give rise to or affect liability in relation to the risk and
does not of itself constitute an admission of liability in
connection with the risk.
11 General principles
(1) A decision that a breach of duty caused particular harm comprises the
following elements—23
(a) the breach of duty was a necessary condition of the
occurrence of the harm (factual causation);
(b) it is appropriate for the scope of the liability of the person in
breach to extend to the harm so caused (scope of liability).
(2) In deciding in an exceptional case, in accordance with established
principles, whether a breach of duty—being a breach of duty that is
established but which can not be established as satisfying subsection
(1)(a)—should be accepted as satisfying subsection (1)(a), the court is
to consider (among other relevant things) whether or not and why
responsibility for the harm should be imposed on the party in breach.
(3) If it is relevant to deciding factual causation to decide what the person
who suffered harm would have done if the person who was in breach
of the duty had not been so in breach—
(a) the matter is to be decided subjectively in the light of all
relevant circumstances, subject to paragraph (b); and
(b) any statement made by the person after suffering the harm
about what he or she would have done is inadmissible except
to the extent (if any) that the statement is against his or her
interest.
(4) For the purpose of deciding the scope of liability, the court is to
consider (among other relevant things) whether or not and why
responsibility for the harm should be imposed on the party who was
in breach of the duty.
12 Onus of proof
In deciding liability for breach of a duty, the plaintiff always bears the
onus of proving, on the balance of probabilities, any fact relevant to
the issue of causation.
[53] As I accept the evidence of Mr Fyfe I conclude that the school cannot be refused relief
against the architect. Not only has there been a breach of the contract of retainer there
has also been a breach of the duty of care and this has caused the school’s loss.
[54] I find the architect breached the duty of care owed to the school because the risk of
harm to the school by not following Mr Fyfe’s instructions was foreseeable. That is
because by not following the instructions the school would receive a basketball court
that was not full-size and the school could elect, as it did, to remedy the deficiency at a 24
substantial cost to it. In that way the risk was not insignificant and in the
circumstances a reasonable person in the position of the architect would have taken
precautions by designing the basketball court as instructed.
[55] I find it was obvious harm would occur if the instructions were not followed. Further,
the seriousness of the harm would be significant, or it could require substantial
expenditure to rectify the omission.
[56] I find the burden of taking precautions to avoid the risk of harm was minor as the
architect could have designed the required size at the same time as the balance of the
design.
[57] I do not consider the social utility of the omission of the instructions has any bearing
on deciding whether a reasonable person would have taken precautions against the risk
of harm.
[58] I find the breach of duty by the architect caused the school’s loss. I find the breach of
duty was a necessary condition of the occurrence of the harm and it is appropriate for
the scope of the liability of the architect to extend to the harm so caused.
[59] I find if the architect had not been in breach of the duty of care there would not have
been any action for the school to take as a full-size basketball court would have been
designed and built.25
[60] I find there is no good reason not to impose responsibility for the school’s loss on the
architect.
[61] I find the school has satisfied the onus of proof on the balance of probabilities that the
architect’s breach of duty caused the school’s loss.
DISTRICT COURT OF QUEENSLAND
CITATION: Christian Education Ministries – Qld Ltd v Thomson Adsett
Pty Ltd [2015] QDC 292
PARTIES: CHRISTIAN EDUCATION MINISTRIES – QLD LTD
ACN 125 183 637
(plaintiff)
v
THOMSON ADSETT PTY LTD ACN 105 314 654
(defendant)
FILE NO/S: BD 5120/2011
DIVISION: Civil
PROCEEDING: Trial
ORIGINATING
COURT:
District Court at Brisbane
DELIVERED ON: 26 November 2015
DELIVERED AT: Brisbane
HEARING DATE: 18, 19 and 20 November 2015
JUDGE: Samios DCJ

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Whether it can be said that court has appointed commissioner if landlord is conducting inspection of premises with leave of court?

In the present case, the plaintiff had given a notice to the
defendant to allow him to inspect the premises along with his
architect/surveyor (the said fact is denied by the defendants) and
as the suit is pending the plaintiff thought it fit to obtain leave of

the Court and the same has been granted by the Court. However,
the said order of the Court cannot be construed of having
appointed a Court Commissioner nor the measurement carried
out by the plaintiff through his surveyor would be construed as a
measurement carried out by the Court Commissioner. The
measurement carried out by the surveyor of the plaintiff would
be for satisfaction of the plaintiff to ascertain exact area in
occupation of tenant. It will be for the plaintiff to prove his case
with all corroborative evidence.The learned Single Judge of this Court in a case of Smt Kamlabai Laxman Mutraj (supra) has also held that under section 28 of the Act the landlord can be accompanied by hisArchitect or other representative to
take measurement of the tenanted premises.
In view of the aforesaid conspectus of the matter, the order

of the trial Court does not require any interference.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2677 OF 2013

Suresh Manoharlal Jumani Vs  Aasia Management &
Consultancy Pvt Ltd, 

CORAM : S.V.GANGAPURWALA, J.

PRONOUNCED ON:23/08/2013

Citation;(2013) 6 AIIMR 117,2013(5) MHLJ905

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