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Liverpool And London... v. M.V. "Sea Success I"...
Factual and Procedural Background
The present motion was filed seeking the appointment of a Commissioner to record evidence in a suit, specifically requesting that the evidence of one witness, Ms. Lynn Cook, residing in Liverpool, United Kingdom, be recorded via video conferencing. The affidavit supporting the application stated that Ms. Cook could not travel to India due to her responsibility for two minor children. The motion was brought under Order 26 Rule 5 of the Code of Civil Procedure (CPC). The defendant No. 1 opposed the motion, arguing that the Court should not exercise discretionary jurisdiction to appoint a Commissioner under this provision and that the witness's evidence should not be recorded by video conferencing due to the importance of observing the witness's demeanour during examination.
Legal Issues Presented
- Whether the Court can exercise discretionary jurisdiction under Order 26 Rule 5 of the CPC to appoint a Commissioner for recording evidence in the suit.
- Whether the evidence of a witness residing abroad can be recorded through video conferencing.
- Whether recording evidence via video conferencing compromises the Court’s ability to assess the witness’s demeanour and credibility.
Arguments of the Parties
Defendant No. 1's Arguments
- The Court lacks jurisdiction under Order 26 Rule 5 of the CPC to appoint a Commissioner for recording evidence in this case.
- The evidence of the witness should not be recorded via video conferencing because the Court must observe the witness’s demeanour, which is essential for assessing credibility.
- Relied on precedents: I.C. Corporation v. Daewoo Corporation and others (AIR 1990 Bombay 152) and Ramesh Siram Sane v. Bhagwandas Atmasingh (AIR 1972 AP 216) to support the contention against video conferencing and appointment of Commissioner.
Plaintiff's Arguments
- Relied on the Supreme Court judgment in State of Maharashtra vs. Dr. Praful B. Desai ((2003) 4 SCC 601) to support the use of video conferencing for recording evidence.
- Argued that video conferencing is a product of advancements in science and technology and facilitates expeditious justice.
- Contended that since the witness is unable to travel to India, the Court should favor recording evidence through video conferencing to avoid delay.
- Proposed to examine only the witness residing abroad via video conferencing.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| I.C. Corporation v. Daewoo Corporation and others (AIR 1990 Bombay 152) | Opposition to appointment of Commissioner and recording evidence via video conferencing due to importance of observing witness demeanour. | The Court noted this precedent but held it to be no longer good law in light of the Supreme Court's ruling in State of Maharashtra. |
| Ramesh Siram Sane v. Bhagwandas Atmasingh (AIR 1972 AP 216) | Similar opposition to video conferencing and appointment of Commissioner under Order 26 Rule 5 CPC. | The Court considered this precedent outdated and impliedly overruled by the Supreme Court judgment. |
| State of Maharashtra vs. Dr. Praful B. Desai ((2003) 4 SCC 601) | Permissibility and procedural safeguards for recording evidence by video conferencing to expedite justice. | The Court relied on this apex judgment as authoritative, holding that video conferencing is permissible and should be used when witnesses cannot travel, providing safeguards. |
Court's Reasoning and Analysis
The Court analyzed the competing positions by considering the legal provisions under Order 26 Rule 5 of the CPC and the precedents cited. It acknowledged the defendant’s concern about the importance of observing the witness’s demeanour but emphasized the Supreme Court’s ruling in State of Maharashtra vs. Dr. Praful B. Desai, which recognized video conferencing as a valid and modern method for recording evidence, particularly when the witness is unable to attend the Court in person. The Court found that the earlier decisions of the Bombay and Andhra Pradesh High Courts, which opposed video conferencing, were impliedly overruled by the apex court’s judgment. It accepted that technological advancements facilitate expeditious justice and that safeguards provided by the Supreme Court ensure the integrity of the evidence recorded by video conferencing. Accordingly, the Court granted the motion subject to conditions ensuring the proper conduct and security of the video conferencing process, including the presence of an officer at the Indian High Commission, sealing of the recorded tapes, and appointment of a Commissioner to oversee the process.
Holding and Implications
The motion for appointment of a Commissioner to record evidence and for recording the witness's evidence via video conferencing is allowed and made absolute.
The Court appointed Mr. Satish Shah, Advocate, as Commissioner to record the evidence by video conferencing at the Indian High Commission in Liverpool, with conditions to ensure the integrity and confidentiality of the process. The plaintiff is to bear all costs of the Commission, with fees shared by both parties. The Commissioner must complete evidence recording by 15.7.2005 and file a report. Additionally, the defendant No. 1 is directed to complete inspection formalities, with the consequence that failure to provide inspection will bar reliance on such documents during evidence.
This decision directly affects the parties by allowing the evidence of a foreign witness to be recorded remotely, facilitating expeditious trial progress. The Court’s ruling aligns with the apex court’s endorsement of technological methods for evidence recording and implicitly overrules earlier contrary High Court precedents. No new precedent beyond this application of existing Supreme Court authority was established.
P.C.
1. The present motion has been taken out for the appointment of Commissioner for recording evidence in the suit as also it has been prayed that the evidence of one witness namely Ms. Lynn Cook who is staying in Liverpool, United Kingdom be recorded on video conferencing. The affidavit in support of the application states that that the said witness is unable to come to India for recording her evidence because she is staying along with two minor children. The present motion is taken out under Order 26 rule 5 of the CPC. The learned Advocate appearing for the defendant No. 1 opposes the present notice of motion and contends that this Court could not exercise discretionary jurisdiction under Order 26 rule 5 and appoint the Commissioner. In any event, he submits that the evidence should not be recorded by video conferencing. It has been contended in support of the argument that the demeanour of the witness is essential to be noted by the Court while examining the witness on evidence. In support of his contention he has relied upon the judgement of this Court in the case of I.C. Corporation v. Daewoo Corporation and others, reported in AIR 1990 Bombay 152 and Ramesh Siram Sane v. Bhagwandas Atmasingh reported in AIR 1972 AP 216 and has contended that this Court should not exercise jurisdiction to appoint the Commissioner for recording evidence and/or in any event the witness should not be examined on video conferencing.
2. The learned advocate appearing for the plaintiff in support of the present application has relied upon a judgment of the Apex Court in the case of State of Maharashtra vs. Dr. Praful B. Desai reported in (2003) 4 SCC 601 and has contended that the video conferencing is the effect of advancement of science and technology and with a view to do expeditious justice it is necessary that the evidence be recorded by video conferencing as one of the witness is not able to travel to India and give evidence. The learned counsel for the plaintiff states that he is proposing to examine only the said witness as evidence in support of his case. I have perused the judgment of the Apex Court in the aforesaid case in State of Maharashtra (supra). On the perusal of the aforesaid judgment it is clear that the Apex Court has held that examining of a witness by video conferencing is permissible and that in the case where the witness is unable to attend the Court or unable to travel to India, this Court should lean in favour of advancement of science and technology and see to it that evidence is recorded expeditiously in the interest of justice by way of video conferencing. The Apex Court has also provided various safeguards in paragraph 26 of the said judgment. In my opinion, in view of the judgment of the Apex Court in the case of State of Maharashtra (supra) the view taken by the learned Single Judge of this Court in I.C. Corporation (supra) and view taken by Andhra Pradesh High Court in the case of Ramesh Siram Sane (supra) is no longer a good law and is deemed to be impliedly overruled. In view of the judgment of the Apex Court in the case of State of Maharashtra (supra), I pass the following order.
3. The notice is made absolute in terms of prayer clauses (a) and (b) on the following conditions.
1. That the witness will give evidence in the room provided by Indian High Commission and/or the Indian High Commission will depute an officer at the earmarked place where the evidence is conducted. The said officer will take precaution that nobody else except the witness is present in the said room during the course when the evidence is recorded on video conferencing.
2. In so far as India is concerned, I appoint Mr. Satish Shah, Advocate, to record evidence on video conferencing. The video conferencing facility will be made available by the plaintiff. If necessary, technical persons also will remain present during the course when evidence is recorded to assist the Commissioner. The video conferencing which is being recorded by the Commissioner and the tapes of the said video conferencing will be kept in a sealed envelope and filed in Court for the purpose of trial of the suit.
3. The plaintiff shall pay all cost, charges and expenses of the Commission. The fees of the Commissioner will be shared by both the parties.
4. The Commissioner is directed to complete the evidence on or before 15.7.2005 and file his report in Court.
4. Motion made absolute accordingly. There shall be no order as to costs. The defendant No. 1 is directed to complete inspection formalities. It is made clear that if inspection of any of the document is not given by the defendant No. 1 then defendant No. 1 shall not be allowed to rely upon the said documents during the course of evidence.
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