sufficient safeguards have to be provided for the purpose of recording evidence through Audio-Video I Link. The safeguards are :
1. Before a witness is examined in terms of the Audio-Video Link, witness is to file an affidavit or an undertaking duly verified before a notary or a Judge that the person who is shown as the witness is the same person as who is going to depose on the screen. A copy is to be made available to the other side. (Identification affidavit).
2. The person who examines the witness on the screen is also to file an affidavit/undertaking before examining the witness with a copy to the other side with regard to identification.
3. The witness has to be examined during working hours of Indian Courts. Oath is to be administered through the media.
4. The itness should not plead any inconvenience on account of time different between India and USA.
5. Before examination of the witness, a set of plaint, written statement and other documents must be sent to the witness so that the witness has acquaintance with the documents and an acknowledgement is to be filed before the Court in this regard.
6. Learned Judge is to record such remarks as is material regarding the demur of the witness while on the screen.
7. Learned Judge must note the objections raised during recording of witness and to decide the same at the time of arguments.
8. After recording the evidence, the same is to be sent to the witness and his signature is to be obtained in the presence of a Notary Public and thereafter it forms part of the record of the suit proceedings.
9. The visual is to be recorded and the record would be at both ends. The witness also is to be alone at the time of visual conference and notary is to certificate to this effect.
10. The learned Judge may also impose such other conditions as are necessary in a given set of facts.
11. The expenses and the arrangements are to be borne by the applicant who wants this facility.
Parties would be referred to as per their ranking before the trial Court. Appellants are defendants. Respondent is the plaintiff. Plaintiff filed a suit in O.S. No. 154/98 on the file of the Principal District Judge. Mysore, complaining about the infringement of copy right in respect of film 'Independence Day'. Plaintiff also sought for an order restraining the release of the said film by the defendant. An IA was filed seeking for an order to restrain the defendants from re-releasing, screening of the film any where in India or in other countries. The said IA was rejected. It was challenged in MFA No. 3074/1999. This Court rejected the appeal by an order dated 19-7-1999. This Court directed the trial Court to dispose of the suit not later than six months from the date of the order. According to the averments in the appeal, the plaintiff did not
commence his evidence immediately. He commenced his evidence only on 15-6-2001 i.e, nearly after two years. He examined his witnesses and closed the evidence on 16-1-2002. Defendants examined their witnesses and they have six more witnesses to be examined. Four witnesses are from USA. During this period due to disturbances in Mysore on account of Cauvery Water Dispute, the witnesses had to change their travel plans on number of occasions. On a few occasions learned counsel from Bombay who have to come down from Bombay to Bangalore along with witnesses were unable to proceed to Mysore on account of agitation and the consequential disruption of road and rail traffic. Defendants say that having regard to the fact that four witnesses who are to be examined are permanent residents of USA, an application was filed seeking an order to examine them through Audio-Video Link. The trial Court passed an order rejecting this request. This order is challenged in CRP 4637/2O02. CRP 4636/2002 also refers to the very facts. The only difference in this case is that IA No. 17 was filed with a prayer to record the evidence by way Commissioner. Learned Judge has rejected this IA No. 17 (sic) both these applications were contested and a common order was passed by the learned Judge. Both these petitions are taken up together. The matter was listed for orders, both the counsel expressed their desire to argue the case finally in the interest of early disposal. With their consent the matter is taken up for final disposal.
3. The issue Involved in the case on hand is with regard to examination of witnesses in USA either by way of Commissioner or by way of Audio-Video Link . Sri Udaya Holla, learned counsel for the petitioner invites may attention to the material facts to show that this Court has factually granted six months time in terms of the earlier order and he has also filed a memo in that regard. He also says that in these days of technological development Courts are also to develop law in the light of the technological improvement in the matter of procedure. He states that in the light of the amended CPC witness can be examined by way of Audio-Video Link. He also says with emphasis that Audio-Video Link is permissible in law. He relies on some judgments.
4. Per contra, Sri AYN Gupta, learned counsel for respondent, with vehemence would say that the present CPC does not provide examination of witnesses by way of Audio-Video Link. He also relies on a Division Bench Judgment reported in (1975) 2 Kant LJ 47 (short notes of cases). He would also say that revision itself is not maintainable in the case on hand. While concluding he states that the Audio-Video Link has several in-built defects. He elaborates by saying that the learned Judge may not have the benefit of the witness being present before him and the tenor of the witness cannot be examined. Further there will be difficult in administering oath and the difference in time between India and USA will come in the way of witnesses. He refers to the Section to say that the 'attendance' would mean personal attendance at Mysore.
5. Let me first deal with the contention with regard to maintainability of the CRP in this Court. The CPC is presently amended with the laudable object of speedy disposal by curtailing the cumbersome procedure in the matter of civil procedure. Section 115 provides for a revision. The Section reads as under;
"Section 115 Revision :--The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-
(a) to have exercised a jurisdiction not vested in it by law. or,
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of his jurisdiction illegally or with material irregularity, the High Court may makes such order in the case as it thinks fit:
Provided that the High Court shall not under this Section, vary or reverse any order made, or any order deciding in issue in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for the revision, would have finally dispose of the suit or other proceedings."
Learned counsel for the respondent contends that unless it is shown in effect that the order would have finally disposed of the suit or other proceedings, no revision is available. He relies on the Judgment of a learned single Judge of this Court in ILR 2002 Kant 3512. Learned counsel for the petitioners on the other hand would say that this order virtually finalises the issue.
6. Admitted facts reveal of a suit between an Indian Citizen and United States Company based in California. Request to record the evidence either by way of Commissioner or Audio-Video Link was sought for and the same has been rejected. There is time schedule in the case on hand. If these witnesses are not examined in time, though an order would be passed by the learned Judge, it would virtually amount to a disposal of the suit without evidence. It also would result in finally disposing of the proceedings itself. Interest of justice requires that a very narrow interpretation is not to be placed on the proviso and the order is to be understood in the light of its effect resulting in virtual final disposal of the suit itself. If a party "is not permitted to lead evidence in terms of an order of Court, nothing survives, except factually deciding the suit itself without the support of evidence. Therefore, I am of the view that the present order would almost result in virtual final disposal of the suit itself and hence notwithstanding Section 115(1) Proviso, the matter requires my Interference. The Supreme Court in noticing the judgment also ruled that if an order under Rule suffers from any specific injustice courts have to step in to render justice to the parties. Therefore, I do not accept the argument of the learned counsel Mr. AYN Gupta that the present case is not to be revised. The judgment of this Court relied on by the learned counsel was a case of rejection of amendment. The learned Judge has ruled that rejection of amendment would not finally dispose of the suit. The facts in that case stands on a different footing. This Court did not have the benefit of a later judgment of the Supreme Court while
disposing of the said petition. The Supreme Court in the subsequent judgment has ruled that prejudice is a factor that requires consideration. Supreme Court has also stated that no straight jacket formula can be laid down in such cases. Moreover, the Judgment relied on by the learned counsel is pending decision before a Division Bench. The Supreme Court in has ruled that the amendment could be permitted to avoid a new suit.
The Supreme Court has considered the scope of Section 115 in (Prem Bakshi v. Dharam Dev) and has ruled in paras 5, 6 and 7 as under :
"5. The proviso to Sub-section (1) of Section 15 puts a restriction on the power of the High Court inasmuch as the High Court shall not, under this section vary or reverse any order made or any order deciding a issue, in course of a suit or other proceedings except where (i) the order made would have finally disposes of the suit or other proceedings or (it) the said order would occasion a failure of justice or cause irreparable injury to the party against whom it is made. Under clause (a), the High Court would be justified in interfering with an order of a subordinate Court if the said order finally dispose of the suit or other proceedings. By way of illustration we may say that if a trial Court holds by an interlocutory order that it has no jurisdiction to proceed the case or that suit is barred by limitation, it would amount to finally deciding the case and such order would be revisable. The order in question by which the amended was allowed could not to have finally disposed of the case and, therefore, it would not come under clause (a).
6. Now the question is whether the order in question has caused failure of justice or irreparable injury to respondent No. 1. It is almost inconceivable how mere amendments of pleadings could possibly cause failure of justice or irreparable injury to any party: Perhaps the converse is possible i.e., refusal to permit the amendment sought for could in certain situations result in miscarriage of justice. After all amendments of the pleadings would not amount to decisions on the issue Involved. They only would serve advance notice to the other side as to the plea, which a party might take up. Hence, we cannot envisage a situation where amendment of pleadings , whatever be the nature of such amendment would even remotely cause failure of justice or irreparable injury to any party.
7. From the facts extracted above, it would show that appellants only wanted to bring to the notice of the Court the subsequent facts and after amendment of the plaint, respondent No. 1 would get opportunity of file written statement and he would be able to raise all this defence. Ultimately if the suit is decided against the respondent No. 1 he would have a chance to take up these points before the appellate Court. It cannot be conceived of a situation that the proposed amendment if allowed would cause irreparable injury or failure of justice as the remedy of the respondent No. 1, as stated above is by way of an appeal. We are, therefore, of the view that the order allowing the amendment would not come under clause (b)."
Therefore in the given set of circumstances and on the facts of this case, I deem it proper to entertain this revision in the interest of justice.
7. Coming to the merits of the matter, let me see as to whether the Audio-Video Link in the matter of evidence is permissible in law or not ?
Order 18 of CPC provides for hearing of the suit and examination of witnesses. Order 18 Rule 3 provides for evidence where other issues are involved. Recording of evidence is provided under Order 18, Rule 4. The CPC is amended from time to time in the Interest of speedy disposal and to avoid cumbersome procedure in the matter of conducting civil trials. It is a matter of fact that civil proceedings in this country take a few years as experience reveals. To get over this normal procedural delay, the Government has thought it fit to amended the Act in the larger interest of speedy disposal. The statement of objects and reasons of CPC Amendment Act 1999 would show that the maximum time is consumed in recording evidence by the courts and it is proposed to reduce such delay by making provision for evidence by affidavit. The object refers to the report of the Hon'ble Mr. Justice Malimath. and the Law Commission Recommendations. The Act was amended in 1999 in terms of the Act 46/1999 it was subsequently amended in CPC amendment Act of 2002. Order 18. Rule 4 provides for examination in chief of a witness by way of an affidavit. Sub-rule (2) provides for cross-examination and re-examination of witnesses being done in attendance whose evidence by affidavit has been furnished to the Court is to be taken by the Court or the commissioner appointed by it. The Court may also take into consideration the relevant factors as it it think fit in terms of the rule. The argument of Sri AYN Gupta, learned counsel is that the word "attendance" would mean physical attendance. The argument of Sri Udaya Holla, learned counsel is that the word "attendance" would not mean physical attendance. Audio-Video Link is a technology developed by electronic media to avoid the physical presence and to avoid the loss in time. It is a speedy method evolved for the purpose of speedy decision. Even in Audio-Video Link party is definitely present in person and his presence is reflected on the screen. The word 'in attendance' under Order 18, Rule 3(4)(2) is to be understood as the person being present and it need not be physical presence. The presence on the screen is as good as attendance for the purpose of Order 18, Rule 3(4) (2) of the Rules. After all law only requires the presence of the witness and It does not matter as to how he is present . Just because it is physically impossible for him to be present at Mysore, this method of Audio-Video Link is suggested by the party for speedy disposal. Insistence of personal attendance would defeat the very object of Order 18, Rule 3(4)(2) of the CPC. Moreover, the proviso also provides for taking into account such relevant factor as he think fit. Therefore, mere non-physical attendance by itself does not prohibit examination of a witness by way of Audio-Video Link. I must also notice at this stage that Order 18, Rule 3(4)(3) which provides for recording evidence either by writing or mechanically in the presence of a Judge. Audio-Video Link is a mechanical process where the party is present on the screen and there is a mechanical divisor recording the evidence. This also supports the contention of Mr. Udaya Holla. Therefore, I am firmly of the view that there cannot be any impediment in the given set of facts to record evidence through Audio-Video Link . There is no prohibition as such in term of Order 18, Rule 3(4) of the Code. On the other hand, the amendments would support the contention of such an interpretation. After all the present amendment has been effected for speedy trial and speedy disposal and that cannot be strangulated by narrow interpretation. Technology development is taking place all over the Globe and Courts cannot lag behind in this regard. If law Courts do not permit technological development in Court proceedings, it would be lagging behind compared to other sectors. Law has to develop and if law is to develop, technology has to be made as a tool. Therefore, the objections in this regard is unsustainable. Learned trial Judge has taken a very narrow view. A reading of entire order of the learned Judge would show that the learned Judge had in his mind that time factor of this Court and also certain defects in the matter of procedure of recording evidence. Any implementation of new technology will have initial hiccups and these are to be removed by proper application of law with sufficient safeguards. Therefore, the learned Judge in my view is not right in rejecting recording of evidence by Audio-Video Link in the given set of facts.
8. At this stage I must also notice the argument of Sri AYN Gupta with regard to the judgment of this Court in the case of Nagabhushan Rao v. State of Karnataka (1975) 2 Kant LJ 47 (SN). That was a case where this Court was considering the recording of evidence by tape recorder. Moreover, that was a case of pre amendment. Therefore that case is distinguishable both on facts and in law. On the other hand, a learned Judge of the Bombay High Court in Suit No. 11/1996 has considered this very question and it is better to cull out the short judgment.
"1. This Chamber summons is for Commission to examine one Mr. Ramaswamy K. Iyer. The said Ramaswamy K. Iyer was at the relevant time a Director of the local cur -rency group of the plaintiffs. He has since resigned from the plaintiffs and has gone to reside in Atlanta in United States of America. The said Mr. Ramaswamy K. Iyer has by his letter dated 12th Sept. 1994 informed the plaintiffs that it would not be possible for him to take time off from his new job and come to India to give evidence. It is under these circumstances that this chamber summons has been taken out.
2. Mr. Ramswamy K. Iyer appears to be a necessary witness. Under these circumstances normally a Commission should be issued. However, to issue a Commission to USA would incur heavy expenses. After from that in this case an additional difficulty arises. The defendant Mr. Hiten Dalai is a notified party. If the commission is issued it could become necessary to allow him to leave India. This in order to instruct his Advocates and counsel during cross-examination of the said Mr. Ramaswamy K. Iyer. There are a number of criminal cases as well as civil suits, petitions pending against Mr. Hiten Dalai. In my view it is not at all possible to permit Mr. Hiten Dalai to leave India.
3. This leave the only other option suggested by the plaintiffs. The Court is well aware that this something which is as yet untried and new. However, with the advancement of electronics and communication the Court considers this alternative to be feasible.
4. The plaintiffs state that some parties have a facility for an audio and video link with any place in USA. By these Audio and Video Link the counsel and advocates can sit in special room in Bombay whilst Mr. Ramaswamy K Iyer is sitting in another special room in USA, communication link is then established. It would be a live communication. Everything, including the visual would be recorded at both ends. This would then be available for viewing by the Court. Also the recording would be at both ends. This also minimizes and or almost eliminates the possibility of loss of material recorded. Also if an officer of the Court is present in USA in the same room as Mr. Ramswamy K. Iyer, the possibility if his being coached and/ or promoted would be eliminated. The officer of the Court can also administer oath.
5. I therefore make the Chamber summons absolute in terms of prayer (a). The plaintiffs shall arrange for the officer to be nominated by the Court to remain present in USA at all times during the examination of Mr. Ramaswamy K. Iyer. The officer to administer oath and to ensure that there is nobody else from the plaintiffs side sitting in the same room or within sight or hearing of Mr. Ramaswamy K. Iyer during the period that his examination is in process. The date and time when this link is to be set up to be fixed by the advocates in consultation with each other. If parties cannot agree liberty to apply.
6. Plaintiffs to bear initially cost of this commission.
7. Chamber summons as regards Mr. B. Shivakumar will be covered by order dated 8th Nov. 1994 in Chamber Summons No. 13 of 1994 in suit No. 17 of 1994."
The learned Judge has ruled that with the advancement of electronics and communication the Court considers this alternative to be feasible.
9. The Supreme Court recently in the case of Salem Advocate Bar Association has ruled in para 19 reading as under :
"Order 18, Rule 4(3) which provides that the evidence may be recorded either in writing or mechanically in the presence of the Judge or the Commissioner. The use of the word 'mechanically' indicates that the evidence can be recorded even with the help of the electronic media, audio or audio visual and in fact whenever the evidence is recorded by the Commissioner it will be advisable that there should be simultaneously at least an audio recording of the statement of the witnesses so as to obviate any controversy at a later stage."
10. In the light of these two judgments and in the light of the amendment to CPC, the observation of the learned trial Judge requires my interference. At the same time this Court is of the view that sufficient safeguards have to be provided for the purpose of recording evidence through Audio-Video I Link. The safeguards are :
1. Before a witness is examined in terms of the Audio-Video Link, witness is to file an affidavit or an undertaking duly verified before a notary or a Judge that the person who is shown as the witness is the same person as who is going to depose on the screen. A copy is to be made available to the other side. (Identification affidavit).
2. The person who examines the witness on the screen is also to file an affidavit/undertaking before examining the witness with a copy to the other side with regard to identification.
3. The witness has to be examined during working hours of Indian Courts. Oath is to be administered through the media.
4. The itness should not plead any inconvenience on account of time different between India and USA.
5. Before examination of the witness, a set of plaint, written statement and other documents must be sent to the witness so that the witness has acquaintance with the documents and an acknowledgement is to be filed before the Court in this regard.
6. Learned Judge is to record such remarks as is material regarding the demur of the witness while on the screen.
7. Learned Judge must note the objections raised during recording of witness and to decide the same at the time of arguments.
8. After recording the evidence, the same is to be sent to the witness and his signature is to be obtained in the presence of a Notary Public and thereafter it forms part of the record of the suit proceedings.
9. The visual is to be recorded and the record would be at both ends. The witness also is to be alone at the time of visual conference and notary is to certificate to this effect.
10. The learned Judge may also impose such other conditions as are necessary in a given set of facts.
11. The expenses and the arrangements are to be borne by the applicant who wants this facility.
11. In these circumstances, this revision is allowed. The order of the learned Judge is set aside. Witnesses are directed to be examined by way Audio-Video Link in terms of the LA. in the light of this order. No findings are necessary with regard to the request of examination of witnesses by Commission.
12. Before concluding I must also notice another argument of Sri AYN Gupta, learned counsel that this Court has fixed the time schedule in MFA 3074/99 and an application has been field seeking for extension of time and the said application is coming up in January 2003 and therefore this Court is not to pass any order at this stage. Per contra, Sri Udaya Holla , learned counsel would say that this Court at the time of admission after hearing has chosen to extend the time by three months in this case. This order is subject to the orders to be passed this Court in MFA No. 3074/99 in the first week of January, 2003.
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1. Before a witness is examined in terms of the Audio-Video Link, witness is to file an affidavit or an undertaking duly verified before a notary or a Judge that the person who is shown as the witness is the same person as who is going to depose on the screen. A copy is to be made available to the other side. (Identification affidavit).
2. The person who examines the witness on the screen is also to file an affidavit/undertaking before examining the witness with a copy to the other side with regard to identification.
3. The witness has to be examined during working hours of Indian Courts. Oath is to be administered through the media.
4. The itness should not plead any inconvenience on account of time different between India and USA.
5. Before examination of the witness, a set of plaint, written statement and other documents must be sent to the witness so that the witness has acquaintance with the documents and an acknowledgement is to be filed before the Court in this regard.
6. Learned Judge is to record such remarks as is material regarding the demur of the witness while on the screen.
7. Learned Judge must note the objections raised during recording of witness and to decide the same at the time of arguments.
8. After recording the evidence, the same is to be sent to the witness and his signature is to be obtained in the presence of a Notary Public and thereafter it forms part of the record of the suit proceedings.
9. The visual is to be recorded and the record would be at both ends. The witness also is to be alone at the time of visual conference and notary is to certificate to this effect.
10. The learned Judge may also impose such other conditions as are necessary in a given set of facts.
11. The expenses and the arrangements are to be borne by the applicant who wants this facility.
Karnataka High Court
Twentieth Century Fox Film ... vs Nri Film Production Associates ... on 9 January, 2003
Equivalent citations: AIR 2003 Kant 148, 2003 (5) KarLJ 98
2. Facts in brief are as under:Parties would be referred to as per their ranking before the trial Court. Appellants are defendants. Respondent is the plaintiff. Plaintiff filed a suit in O.S. No. 154/98 on the file of the Principal District Judge. Mysore, complaining about the infringement of copy right in respect of film 'Independence Day'. Plaintiff also sought for an order restraining the release of the said film by the defendant. An IA was filed seeking for an order to restrain the defendants from re-releasing, screening of the film any where in India or in other countries. The said IA was rejected. It was challenged in MFA No. 3074/1999. This Court rejected the appeal by an order dated 19-7-1999. This Court directed the trial Court to dispose of the suit not later than six months from the date of the order. According to the averments in the appeal, the plaintiff did not
commence his evidence immediately. He commenced his evidence only on 15-6-2001 i.e, nearly after two years. He examined his witnesses and closed the evidence on 16-1-2002. Defendants examined their witnesses and they have six more witnesses to be examined. Four witnesses are from USA. During this period due to disturbances in Mysore on account of Cauvery Water Dispute, the witnesses had to change their travel plans on number of occasions. On a few occasions learned counsel from Bombay who have to come down from Bombay to Bangalore along with witnesses were unable to proceed to Mysore on account of agitation and the consequential disruption of road and rail traffic. Defendants say that having regard to the fact that four witnesses who are to be examined are permanent residents of USA, an application was filed seeking an order to examine them through Audio-Video Link. The trial Court passed an order rejecting this request. This order is challenged in CRP 4637/2O02. CRP 4636/2002 also refers to the very facts. The only difference in this case is that IA No. 17 was filed with a prayer to record the evidence by way Commissioner. Learned Judge has rejected this IA No. 17 (sic) both these applications were contested and a common order was passed by the learned Judge. Both these petitions are taken up together. The matter was listed for orders, both the counsel expressed their desire to argue the case finally in the interest of early disposal. With their consent the matter is taken up for final disposal.
3. The issue Involved in the case on hand is with regard to examination of witnesses in USA either by way of Commissioner or by way of Audio-Video Link . Sri Udaya Holla, learned counsel for the petitioner invites may attention to the material facts to show that this Court has factually granted six months time in terms of the earlier order and he has also filed a memo in that regard. He also says that in these days of technological development Courts are also to develop law in the light of the technological improvement in the matter of procedure. He states that in the light of the amended CPC witness can be examined by way of Audio-Video Link. He also says with emphasis that Audio-Video Link is permissible in law. He relies on some judgments.
4. Per contra, Sri AYN Gupta, learned counsel for respondent, with vehemence would say that the present CPC does not provide examination of witnesses by way of Audio-Video Link. He also relies on a Division Bench Judgment reported in (1975) 2 Kant LJ 47 (short notes of cases). He would also say that revision itself is not maintainable in the case on hand. While concluding he states that the Audio-Video Link has several in-built defects. He elaborates by saying that the learned Judge may not have the benefit of the witness being present before him and the tenor of the witness cannot be examined. Further there will be difficult in administering oath and the difference in time between India and USA will come in the way of witnesses. He refers to the Section to say that the 'attendance' would mean personal attendance at Mysore.
5. Let me first deal with the contention with regard to maintainability of the CRP in this Court. The CPC is presently amended with the laudable object of speedy disposal by curtailing the cumbersome procedure in the matter of civil procedure. Section 115 provides for a revision. The Section reads as under;
"Section 115 Revision :--The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-
(a) to have exercised a jurisdiction not vested in it by law. or,
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of his jurisdiction illegally or with material irregularity, the High Court may makes such order in the case as it thinks fit:
Provided that the High Court shall not under this Section, vary or reverse any order made, or any order deciding in issue in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for the revision, would have finally dispose of the suit or other proceedings."
Learned counsel for the respondent contends that unless it is shown in effect that the order would have finally disposed of the suit or other proceedings, no revision is available. He relies on the Judgment of a learned single Judge of this Court in ILR 2002 Kant 3512. Learned counsel for the petitioners on the other hand would say that this order virtually finalises the issue.
6. Admitted facts reveal of a suit between an Indian Citizen and United States Company based in California. Request to record the evidence either by way of Commissioner or Audio-Video Link was sought for and the same has been rejected. There is time schedule in the case on hand. If these witnesses are not examined in time, though an order would be passed by the learned Judge, it would virtually amount to a disposal of the suit without evidence. It also would result in finally disposing of the proceedings itself. Interest of justice requires that a very narrow interpretation is not to be placed on the proviso and the order is to be understood in the light of its effect resulting in virtual final disposal of the suit itself. If a party "is not permitted to lead evidence in terms of an order of Court, nothing survives, except factually deciding the suit itself without the support of evidence. Therefore, I am of the view that the present order would almost result in virtual final disposal of the suit itself and hence notwithstanding Section 115(1) Proviso, the matter requires my Interference. The Supreme Court in noticing the judgment also ruled that if an order under Rule suffers from any specific injustice courts have to step in to render justice to the parties. Therefore, I do not accept the argument of the learned counsel Mr. AYN Gupta that the present case is not to be revised. The judgment of this Court relied on by the learned counsel was a case of rejection of amendment. The learned Judge has ruled that rejection of amendment would not finally dispose of the suit. The facts in that case stands on a different footing. This Court did not have the benefit of a later judgment of the Supreme Court while
disposing of the said petition. The Supreme Court in the subsequent judgment has ruled that prejudice is a factor that requires consideration. Supreme Court has also stated that no straight jacket formula can be laid down in such cases. Moreover, the Judgment relied on by the learned counsel is pending decision before a Division Bench. The Supreme Court in has ruled that the amendment could be permitted to avoid a new suit.
The Supreme Court has considered the scope of Section 115 in (Prem Bakshi v. Dharam Dev) and has ruled in paras 5, 6 and 7 as under :
"5. The proviso to Sub-section (1) of Section 15 puts a restriction on the power of the High Court inasmuch as the High Court shall not, under this section vary or reverse any order made or any order deciding a issue, in course of a suit or other proceedings except where (i) the order made would have finally disposes of the suit or other proceedings or (it) the said order would occasion a failure of justice or cause irreparable injury to the party against whom it is made. Under clause (a), the High Court would be justified in interfering with an order of a subordinate Court if the said order finally dispose of the suit or other proceedings. By way of illustration we may say that if a trial Court holds by an interlocutory order that it has no jurisdiction to proceed the case or that suit is barred by limitation, it would amount to finally deciding the case and such order would be revisable. The order in question by which the amended was allowed could not to have finally disposed of the case and, therefore, it would not come under clause (a).
6. Now the question is whether the order in question has caused failure of justice or irreparable injury to respondent No. 1. It is almost inconceivable how mere amendments of pleadings could possibly cause failure of justice or irreparable injury to any party: Perhaps the converse is possible i.e., refusal to permit the amendment sought for could in certain situations result in miscarriage of justice. After all amendments of the pleadings would not amount to decisions on the issue Involved. They only would serve advance notice to the other side as to the plea, which a party might take up. Hence, we cannot envisage a situation where amendment of pleadings , whatever be the nature of such amendment would even remotely cause failure of justice or irreparable injury to any party.
7. From the facts extracted above, it would show that appellants only wanted to bring to the notice of the Court the subsequent facts and after amendment of the plaint, respondent No. 1 would get opportunity of file written statement and he would be able to raise all this defence. Ultimately if the suit is decided against the respondent No. 1 he would have a chance to take up these points before the appellate Court. It cannot be conceived of a situation that the proposed amendment if allowed would cause irreparable injury or failure of justice as the remedy of the respondent No. 1, as stated above is by way of an appeal. We are, therefore, of the view that the order allowing the amendment would not come under clause (b)."
Therefore in the given set of circumstances and on the facts of this case, I deem it proper to entertain this revision in the interest of justice.
7. Coming to the merits of the matter, let me see as to whether the Audio-Video Link in the matter of evidence is permissible in law or not ?
Order 18 of CPC provides for hearing of the suit and examination of witnesses. Order 18 Rule 3 provides for evidence where other issues are involved. Recording of evidence is provided under Order 18, Rule 4. The CPC is amended from time to time in the Interest of speedy disposal and to avoid cumbersome procedure in the matter of conducting civil trials. It is a matter of fact that civil proceedings in this country take a few years as experience reveals. To get over this normal procedural delay, the Government has thought it fit to amended the Act in the larger interest of speedy disposal. The statement of objects and reasons of CPC Amendment Act 1999 would show that the maximum time is consumed in recording evidence by the courts and it is proposed to reduce such delay by making provision for evidence by affidavit. The object refers to the report of the Hon'ble Mr. Justice Malimath. and the Law Commission Recommendations. The Act was amended in 1999 in terms of the Act 46/1999 it was subsequently amended in CPC amendment Act of 2002. Order 18. Rule 4 provides for examination in chief of a witness by way of an affidavit. Sub-rule (2) provides for cross-examination and re-examination of witnesses being done in attendance whose evidence by affidavit has been furnished to the Court is to be taken by the Court or the commissioner appointed by it. The Court may also take into consideration the relevant factors as it it think fit in terms of the rule. The argument of Sri AYN Gupta, learned counsel is that the word "attendance" would mean physical attendance. The argument of Sri Udaya Holla, learned counsel is that the word "attendance" would not mean physical attendance. Audio-Video Link is a technology developed by electronic media to avoid the physical presence and to avoid the loss in time. It is a speedy method evolved for the purpose of speedy decision. Even in Audio-Video Link party is definitely present in person and his presence is reflected on the screen. The word 'in attendance' under Order 18, Rule 3(4)(2) is to be understood as the person being present and it need not be physical presence. The presence on the screen is as good as attendance for the purpose of Order 18, Rule 3(4) (2) of the Rules. After all law only requires the presence of the witness and It does not matter as to how he is present . Just because it is physically impossible for him to be present at Mysore, this method of Audio-Video Link is suggested by the party for speedy disposal. Insistence of personal attendance would defeat the very object of Order 18, Rule 3(4)(2) of the CPC. Moreover, the proviso also provides for taking into account such relevant factor as he think fit. Therefore, mere non-physical attendance by itself does not prohibit examination of a witness by way of Audio-Video Link. I must also notice at this stage that Order 18, Rule 3(4)(3) which provides for recording evidence either by writing or mechanically in the presence of a Judge. Audio-Video Link is a mechanical process where the party is present on the screen and there is a mechanical divisor recording the evidence. This also supports the contention of Mr. Udaya Holla. Therefore, I am firmly of the view that there cannot be any impediment in the given set of facts to record evidence through Audio-Video Link . There is no prohibition as such in term of Order 18, Rule 3(4) of the Code. On the other hand, the amendments would support the contention of such an interpretation. After all the present amendment has been effected for speedy trial and speedy disposal and that cannot be strangulated by narrow interpretation. Technology development is taking place all over the Globe and Courts cannot lag behind in this regard. If law Courts do not permit technological development in Court proceedings, it would be lagging behind compared to other sectors. Law has to develop and if law is to develop, technology has to be made as a tool. Therefore, the objections in this regard is unsustainable. Learned trial Judge has taken a very narrow view. A reading of entire order of the learned Judge would show that the learned Judge had in his mind that time factor of this Court and also certain defects in the matter of procedure of recording evidence. Any implementation of new technology will have initial hiccups and these are to be removed by proper application of law with sufficient safeguards. Therefore, the learned Judge in my view is not right in rejecting recording of evidence by Audio-Video Link in the given set of facts.
8. At this stage I must also notice the argument of Sri AYN Gupta with regard to the judgment of this Court in the case of Nagabhushan Rao v. State of Karnataka (1975) 2 Kant LJ 47 (SN). That was a case where this Court was considering the recording of evidence by tape recorder. Moreover, that was a case of pre amendment. Therefore that case is distinguishable both on facts and in law. On the other hand, a learned Judge of the Bombay High Court in Suit No. 11/1996 has considered this very question and it is better to cull out the short judgment.
"1. This Chamber summons is for Commission to examine one Mr. Ramaswamy K. Iyer. The said Ramaswamy K. Iyer was at the relevant time a Director of the local cur -rency group of the plaintiffs. He has since resigned from the plaintiffs and has gone to reside in Atlanta in United States of America. The said Mr. Ramaswamy K. Iyer has by his letter dated 12th Sept. 1994 informed the plaintiffs that it would not be possible for him to take time off from his new job and come to India to give evidence. It is under these circumstances that this chamber summons has been taken out.
2. Mr. Ramswamy K. Iyer appears to be a necessary witness. Under these circumstances normally a Commission should be issued. However, to issue a Commission to USA would incur heavy expenses. After from that in this case an additional difficulty arises. The defendant Mr. Hiten Dalai is a notified party. If the commission is issued it could become necessary to allow him to leave India. This in order to instruct his Advocates and counsel during cross-examination of the said Mr. Ramaswamy K. Iyer. There are a number of criminal cases as well as civil suits, petitions pending against Mr. Hiten Dalai. In my view it is not at all possible to permit Mr. Hiten Dalai to leave India.
3. This leave the only other option suggested by the plaintiffs. The Court is well aware that this something which is as yet untried and new. However, with the advancement of electronics and communication the Court considers this alternative to be feasible.
4. The plaintiffs state that some parties have a facility for an audio and video link with any place in USA. By these Audio and Video Link the counsel and advocates can sit in special room in Bombay whilst Mr. Ramaswamy K Iyer is sitting in another special room in USA, communication link is then established. It would be a live communication. Everything, including the visual would be recorded at both ends. This would then be available for viewing by the Court. Also the recording would be at both ends. This also minimizes and or almost eliminates the possibility of loss of material recorded. Also if an officer of the Court is present in USA in the same room as Mr. Ramswamy K. Iyer, the possibility if his being coached and/ or promoted would be eliminated. The officer of the Court can also administer oath.
5. I therefore make the Chamber summons absolute in terms of prayer (a). The plaintiffs shall arrange for the officer to be nominated by the Court to remain present in USA at all times during the examination of Mr. Ramaswamy K. Iyer. The officer to administer oath and to ensure that there is nobody else from the plaintiffs side sitting in the same room or within sight or hearing of Mr. Ramaswamy K. Iyer during the period that his examination is in process. The date and time when this link is to be set up to be fixed by the advocates in consultation with each other. If parties cannot agree liberty to apply.
6. Plaintiffs to bear initially cost of this commission.
7. Chamber summons as regards Mr. B. Shivakumar will be covered by order dated 8th Nov. 1994 in Chamber Summons No. 13 of 1994 in suit No. 17 of 1994."
The learned Judge has ruled that with the advancement of electronics and communication the Court considers this alternative to be feasible.
9. The Supreme Court recently in the case of Salem Advocate Bar Association has ruled in para 19 reading as under :
"Order 18, Rule 4(3) which provides that the evidence may be recorded either in writing or mechanically in the presence of the Judge or the Commissioner. The use of the word 'mechanically' indicates that the evidence can be recorded even with the help of the electronic media, audio or audio visual and in fact whenever the evidence is recorded by the Commissioner it will be advisable that there should be simultaneously at least an audio recording of the statement of the witnesses so as to obviate any controversy at a later stage."
10. In the light of these two judgments and in the light of the amendment to CPC, the observation of the learned trial Judge requires my interference. At the same time this Court is of the view that sufficient safeguards have to be provided for the purpose of recording evidence through Audio-Video I Link. The safeguards are :
1. Before a witness is examined in terms of the Audio-Video Link, witness is to file an affidavit or an undertaking duly verified before a notary or a Judge that the person who is shown as the witness is the same person as who is going to depose on the screen. A copy is to be made available to the other side. (Identification affidavit).
2. The person who examines the witness on the screen is also to file an affidavit/undertaking before examining the witness with a copy to the other side with regard to identification.
3. The witness has to be examined during working hours of Indian Courts. Oath is to be administered through the media.
4. The itness should not plead any inconvenience on account of time different between India and USA.
5. Before examination of the witness, a set of plaint, written statement and other documents must be sent to the witness so that the witness has acquaintance with the documents and an acknowledgement is to be filed before the Court in this regard.
6. Learned Judge is to record such remarks as is material regarding the demur of the witness while on the screen.
7. Learned Judge must note the objections raised during recording of witness and to decide the same at the time of arguments.
8. After recording the evidence, the same is to be sent to the witness and his signature is to be obtained in the presence of a Notary Public and thereafter it forms part of the record of the suit proceedings.
9. The visual is to be recorded and the record would be at both ends. The witness also is to be alone at the time of visual conference and notary is to certificate to this effect.
10. The learned Judge may also impose such other conditions as are necessary in a given set of facts.
11. The expenses and the arrangements are to be borne by the applicant who wants this facility.
11. In these circumstances, this revision is allowed. The order of the learned Judge is set aside. Witnesses are directed to be examined by way Audio-Video Link in terms of the LA. in the light of this order. No findings are necessary with regard to the request of examination of witnesses by Commission.
12. Before concluding I must also notice another argument of Sri AYN Gupta, learned counsel that this Court has fixed the time schedule in MFA 3074/99 and an application has been field seeking for extension of time and the said application is coming up in January 2003 and therefore this Court is not to pass any order at this stage. Per contra, Sri Udaya Holla , learned counsel would say that this Court at the time of admission after hearing has chosen to extend the time by three months in this case. This order is subject to the orders to be passed this Court in MFA No. 3074/99 in the first week of January, 2003.
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