Recording Of Evidence Through VC Not Right Of Any Party, Discretion With Court To Grant Leave: Karnataka High Court

A single judge bench of Justice Sachin Shankar Magadum observed thus while dismissing a petition filed by TG Veeraprasad and others challenging an order of the trial court dated March 28, rejecting their application seeking permission to lead ocular evidence of the defendant no 1, through video conferencing facilities.

The bench upheld the order of the trial court and said, "Video Conferencing does have a place in the legal system. The challenge is not to exclude it but to use it with responsibility...The Court proceedings have an atmosphere/tone. Part of this tone comes from serious adherence to the legal rules of the Constitution, the Rules of Evidence, and also the Rules of Criminal Procedure. There is also a weighty human feel. Therefore, Courts have to caution themselves when adversal party objects for video conferencing."

It added, "The very ceremony of trial in an open Court and presence of fact finder may exert a powerful force for truth telling. The opportunity to judge the demeanour of a witness face to face is accorded great value in the Indian Judicial system. Trial by video conferencing cannot be justified for mere asking by the litigant to the suit. Merely by showing that it is inconvenient for a witness to attend trial can create a risk of denial of effective cross-examination."

It continued, "The present petitioner-defendant has clearly demonstrated that his object is to prevent a fair trial. He is not merely purporting to invoke his right of access to the Court, but the material on record clearly indicates that his real object is not to have a fair trial at all. If the Court wish to avoid bringing the administration of justice into disrupt, in my view the Court should be slow in make decisions favouring those who set out to use the Court process to their advantage."

Background

The plaintiffs had instituted a suit seeking to declare them as absolute owners of suit lands and for consequential relief of injunction to restrain defendants from interfering with their peaceful possession. It was alleged that the defendant no. 1, without any authorisation, on the strength of forged and fabricated power of attorney, had illegally transferred suit lands belonging to plaintiff in favour of defendants 2 to 4.

Defendants 1 to 4 and 7 filed an application under Section 151 of CPC seeking leave to permit defendant No.1 to lead ocular evidence through video conferencing facilities. It was claimed that defendant No.1 is a senior citizen aged about 68 years having comorbid health concerns and is a resident of Hyderabad and in the light of ongoing Covid-19 pandemic, the doctor has advised him to not to travel to Bengaluru.

Senior Advocate Uday Holla appearing for the petitioner submitted that the trial Judge erred in not exercising discretion which is vested with the Court in the light of Video conferencing Rules.

The plaintiff opposed the plea stating that the defence set up by Defendants involves complex questions of facts and law and there are voluminous documents relied on by both the parties and therefore, the plaintiffs are entitled for cross-examination of the first defendant physically.

Findings:

At the outset, the Court noted that the averments regarding defendant's inability to appear in court were "vague" and no particulars were furnished as to the gravity of multiple co-existing diseases as alleged.

It then referred to Rule 6.2 which provides that any proposal to move a request for video conferencing should first be discussed with the other parties to the proceeding, except where it is not possible or inappropriate, for example in cases such as urgent applications.

In the present case, the bench noted, the application seeking leave of the Court to lead ocular evidence was filed by the defendants "unilaterally", without consulting the plaintiffs. It also noted that several adjournments were sought by the defendant before filing the aforesaid application.

On the issue of whether defendant No.1 can insist for trial through video conferencing as a matter of right, the bench said recording of evidence by Video Conferencing can be used only in those cases where there is no compulsion for the parties to appear before the Court or where the parties are unable to appear before the Court.

It expressed,

"The Rules are framed in 2020 and the Courts are experimenting the effectiveness of video conferencing. It may be a cost efficient way to facilitate the Courtroom process. While its efficiency is clear, its effectiveness can be assessed only after securing feedback from the Courts and Judges conducting trials through video conferencing. Until video conferencing is properly studied and that the feed backs in conducting trial through video conference in comprehensive suits are analysed and replicated to the satisfaction of social science and legal communities, the Court has to be double cautious, More particularly, when an adversal party is objecting for recording of cross-examination through video conferencing."

The bench said where ocular evidence of public servants, doctors, Bank Managers, Medical experts, handwriting experts, scientific experts, fingerprint experts is required to be recorded, the proceedings are stalled on account of inability to secure the above said witnesses. Therefore, in such cases the Court should exercise discretion and enable the litigants to avail the technology and Court should record evidence of such witnesses. Video Conferencing should also be encouraged in matrimonial cases. But, when it comes to comprehensive civil suits, where complex issues are involved, the Court said it should remain cautious in allowing a party to lead evidence through video Conferencing.

On going through the facts of the case the bench held, "The present petitioner after lapse of 10 years has filed an application seeking rejection of plaint. It is only after rejection of the plaint, the petitioner who has never appeared before the Court has come up with this application, which is not supported by an affidavit, but is accompanied by the memorandum of facts of the counsel on record. Therefore, the present petitioner-defendant has clearly demonstrated that his object is to prevent a fair trial. He is not merely purporting to invoke his right of access to the Court, but the material on record clearly indicates that his real object is not to have a fair trial at all."

It added, "If the Court wish to avoid bringing the administration of justice into disrupt, in my view the Court should be slow in making decisions favouring those who set out to use the Court process to their advantage."

Finally it held "In fact the material on record indicates that the conduct of defendant No.1 is unfair. Defendant No.1 having suffered an order on an application filed under Order 7 Rule 11 of CPC has come up with the present application. There are serious allegations in regard to fraud, fabrication of documents and also allegations in regard to impersonation before the Registering Authority. Therefore, this is a fit case where the plaintiff is entitled to cross-examine defendant No.1 in a face to face trial instead through video conferencing."

Case Title: T G VEERAPRASAD & Others v. PRAKASH GANDHI & Others

Case no: WRIT PETITION NO.8283 OF 2022

Citation: 2022 LiveLaw 249

Date of Order: 1ST DAY OF JULY, 2022

Appearance: Senior Advocate Uday Holla for AJAY J N AND AJAY J NANDALIKE for petitioners; Advocate B.M.BALIGA, FOR R1 & 2; HCGP H.R.ANITHA, FOR R3 & 4

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