- (1.) This is an application filed by the plaintiff for appointment of a fit and proper person as commissioner for recording the evidence of plaintiff via video conferencing from India. The suit is for dissolution of a partnership business carried on by the plaintiff and the defendant no. 2 under the name of M/s. Kaluram Sarda and Grandsons, the defendant no. 1. The plaintiff is a 72 year old gentleman and resides in Mansfield, Notts, United Kingdom. Mr. Suman Dutt, learned counsel appearing for the plaintiff submits that apart from being an elderly person, the plaintiff is mostly wheelchair-bound with restricted mobility. The apprehension expressed by counsel is that the assets of the partnership firm are being dealt with by the defendant no. 2, taking advantage of the fact of the plaintiff living outside the country. Counsel relies on two medical certificates dated 3rd December, 2018 and 27th April, 2017 issued by a doctor at St Peter's Medical Practice, Mansfield and Sherwood Forest Hospitals respectively. The aforesaid certificates record that the plaintiff has an unsteady gait and requires a walking frame for short distances and a wheelchair for travelling long distances. It further records that the plaintiff had a pacemaker inserted on 21st December, 2015 and has a complex heart block. It is submitted that this is a fit case for issue of a commission for recording the evidence of the plaintiff having regard to the physical condition of the plaintiff. Counsel appearing for the defendants submits that the plaintiff is not completely immobile and that the medical reports may have been influenced. He however does not object to the commission being recorded by way of video conferencing.
(2.) Having seen the medical certificates relied upon by Mr. Dutt it is clear that the plaintiff may not be in a position to travel to India and to this court for giving evidence and hence there is no reason to refuse appointment of a Commissioner for recording the evidence of the plaintiff. The prayer made for video conferencing facilities is a fair option given by the plaintiff since that would save substantial costs of the Commissioner and others travelling to the UK for recording such evidence. Counsel relies on Badyanath Halder v. Medical Council of India reported in 2012 SCC Online Cal 8082, where this court was of the view that conducting a case through video conferencing has become an accepted procedure in recent times and is also commonly used in this court for cases originating from the Andaman and Nicobar Islands. In the said decision the word 'mechanically' in Order XVIII Rule 4 of The Code of Civil Procedure, 1908 was construed to mean that evidence can be recorded even with the help of electronic media, audio or audio-visual. The learned single Judge relied on Salem Advocate Bar Association TN v. Union of India reported in (2003) 1 SCC 49 for giving the aforesaid construction.The point essentially was that under Order XVIII Rule 4, recording of evidence in the presence of the Judge or the Commissioner, has been broadened to take the benefit of advancement of technology. Counsel also relies on Twentieth Century Fox Film Corporation and Anr. v. NRI Film Production Associates (p) Ltd. reported in AIR 2003 Karnataka 148 on the proposition that "attendance" as stated under Order XVIII Rule 4(2) does not mean that the person has to be physically present before the court or the Commissioner. In that case it was held that mere non-physical attendance by itself will not stand in the way of a witness being examined by audio-video link. For the procedure to be laid down for recording of evidence of the plaintiff via video conferencing, Counsel relies on Amitabh Bagchi v. Ena Bagch reported in AIR 2005 Calcutta 11. In this decision, a learned single Judge of this court emphatically held that courts should permit development of technology to aid court proceedings since that would be a productive tool in appropriate cases. A detailed procedure for recording of evidence through video conferencing was laid down in that decision.
(3.) Having regard to the case made out by the plaintiff and the fact that the defendants cannot dispute the fragile physical condition of the plaintiff, this court is inclined to allow the application in terms of prayers (a), (b) and (c). It should also be stated that the defendant will not suffer any prejudice if the recording of the plaintiff's evidence is done on commission via video conferencing. Dragging an aged and infirm witness across continents and making him suffer the rigors of evidence can certainly be dispensed with in the present facts. However, since the plaintiff will not be physically present before the Commissioner, appropriate safeguards will be required to facilitate the commission through video conferencing. Accordingly, the following guidelines are suggested so that the entire procedure can be facilitated effectively. This would include; (a) Before the witness action under Audio-Video Link starts, the witness will have to file an affidavit or an undertaking duly verified before a Judge or a Magistrate or a Notary that the person who is shown as the witness is the same person as the person who is going to depose on the screen with a copy of such identification affidavit to the other side. (b) The person who wishes to examine the witness on the screen will also file an affidavit or an undertaking in before examining the witness with a copy of the other side with regard to the identification before the evidence commences. (c) As soon as the identification part is complete, oath will be administered through the media as per the Oaths Act, 1969. (d) The witness will be examined during working hours of Indian Courts. (e) The witness action, as far as possible will proceed without granting unnecessary adjournments. (f) In case of a non-party witness, a set of plaint, written statement and/or other papers relating to the proceedings and disclosed documents should be sent to the witness for his acquaintance and an acknowledgement in this regard will be filed before the Court. (g) The Commissioner should record any relevant remark regarding the demeanour of the witness while on the screen and shall note the objections raised during recording of witness either manually or mechanically. (h) Depositions of the witness either in the question answer form or in the narrative form will have to be signed without delay before a Magistrate or Notary Public and thereafter will form part of the record of the proceedings. (i) Digital signature, if can be adopted in this process, will be obtained immediately after the day's deposition. (j) The visual recording should be at both the ends. The witness alone can be present at the time of video conference, Magistrate and Notary is to certify to this effect. ;