PRADIP KUMAR SARDA Vs. KALURAM SARDA & GRANDSONS

JUDGEMENT

(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.

(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.

(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;