Calcutta High Court
Hiralal Bhandari vs Bhawarlal Bhandari on 12 December, 2018
Author: Moushumi Bhattacharya
Bench: Moushumi Bhattacharya
OD-15
ORDER SHEET
G.A. No. 3287 of 2018
With
T.S. No. 8 of 2018
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
IN THE GOODS OF:
CHAMPALAL BHANDARI (DECEASED)
-AND-
HIRALAL BHANDARI
Versus
BHAWARLAL BHANDARI
BEFORE:
The Hon'ble JUSTICE MOUSHUMI BHATTACHARYA
Date : 12th December, 2018.
Appearance:
Mr. Reetobroto Mitra, Adv.
Mrs. Sweta (Gandhi) Murgai, Adv.
...for the petitioner/plaintiff
Mr. Rahul Karmakar, Adv.
Ms. Gargi Goswami, Adv.
...for the respondent/defendant
The Court: This is an application by one of the sons of the deceased for appointment of a Commissioner for the purpose of recording the evidence of the attending witness, Mrs. Meena Bhandari at her residence within the local limits of this court.
The instant suit arises from a probate proceedings filed by the applicant in relation to the Will of one Champalal Bhandari, who died on 2nd August, 2015. 2 The Will dated 19th March, 2002 is being challenged by the elder son and the only daughter of the deceased.
Mr. Reetobroto Mitra, learned counsel appearing for the plaintiff/applicant, submits that Meena Bhandari, the widow of the deceased, is the only remaining attending witness to the Will as both the attesting witnesses have died. Counsel submits that the petitioner had filed an application for recording of the evidence of Meena Bhandari, de bene esse, in relation to the execution of the Will. The said application was allowed by an order of a learned Single Judge of this Court on 3rd February, 2017, recording inter alia, that the attending witness is of advance years and is suffering from various illnesses.
The petitioner was thereafter constrained to move an application for issue of commission which was declined by an order dated 3rd January, 2018 which was corrected by an order dated 9th January, 2018.
Mr. Mitra submits that despite the order dated 9th January, 2018, his client has been compelled to make the instant application since the proposed witness Meena Bhandari, is 84 yours old and is in a precarious physical condition. He relies on medical reports of November, 2018 to show that the proposed witness is indeed suffering from a serious medical condition which would make it impossible for her to attend court for giving evidence. It may be relevant to mention that the medical reports state that Meena Bhandari is suffering from Chronic Kidney Disorder and has been prescribed a host of medicines. Counsel submits that in the absence of any of the attesting witnesses, 3 the evidence of Meena Bhandari, as the only surviving attending witness, is crucial to the plaintiff's case.
Mr. Mitra relies on Ashrant Bhartia & another v. Jagmohan Kerjriwal & others reported in AIR 2015 Calcutta 252 in which a prayer had been made for issue of commission to be held in New Delhi and for the entire proceedings to be video recorded for observing the demeanour of the witness. In that decision, the Division Bench of this court took into account several cases where commission had not been allowed on the ground that the court would be deprived of observing the demeanour of a witness while evidence was being taken. The Division Bench however, rejected the aforesaid factor and permitted issue of commission and for the proceedings to be video recorded. He also relies on In the goods of : Narendra Nath Mitra -and- Sunil Krishna Mitra v. Debasish Kumar Sinha & Anr. reported in 2009 SCC Online Cal 2613 in which the medical certificates of the concerned witness were taken into account by the learned Single Judge together with the fact that the witness was of advanced years. Commission was allowed on that basis.
Mr. Rahul Karmakar, learned counsel appearing for the defendant opposes the application on two grounds. First, he relies on the order passed in January, 2018 by which the plaintiff's application for commission was rejected. Counsel submits that this order would operate as Res judicata in relation to the instant application since identical prayers had been made in the earlier application and were declined by the learned Judge. Counsel relies on several decisions to show 4 that the principles of Res judicata operate not only in relation to interlocutory applications but also at two different stages of the same proceeding. Counsel relies on several decisions on the applicability of the doctrine of Res judicata namely, Adhir Chandra Banaerjee Vs. Smt. Lilabati Mukherjee reported in (1993) 1 Cal LT 307; Satyadhyan Ghosal & Ors. Vs. Deorajin Debi (Smt.) & Anr. reported in AIR 1960 SC 941; U. P. State Road Transport Corporation Vs. State of U. P. & Anr. reported in (2005) 1 SCC 444; M/s. Special Steel & Wire Wings Vs. Sri Radhe Shyam Bhootra reported in (2016) 4 ICC as well as the decision of Panchkari Mitra v. Panchanan Saha & Ors. reported in AIR 1924 Cal 971 to reinforce the importance of a court having the benefit of observing the demeanour of a witness.
The other ground of objection taken by Mr. Karmakar is that there is no pressing reason for allowing the witness to be examined on commission. He submits that the residence of the witness is at a short distance from the court and that the medical parameters relied upon by Mr. Mitra do not reflect any deterioration in the physical condition of the proposed witness.
I have considered the submissions made by counsel appearing for the parties. It is true that the learned Single Judge had thought it fit in January 2018 for rejecting the prayer for commission for taking the evidence of Meena Bhandari. A portion of the orders dated 3rd February, 2017 and 9th January 2018 are required to be set out for proper appreciation of the factual context; 5
3rd February, 2017:
"The Court: This is an application for examination of the attending witness de bene esse in relation to the execution of the Will dated 19th March, 2002. This application is opposed on the ground that the attending witness was not present when the Will was executed. The dispute raised is more on substance than with regard to the procedure to be adopted at the trial of the suit. Considering the fact the alleged attending witness is of advance stage and he is suffering from various illness and the executor is going to rely upon the evidence of the attending said witness at the trial, there shall be an order in terms of prayer (a)."
9th January, 2018:
"The Court: The application being GA No. 3885 of 2017 was disposed of by this Court with a direction that the attending witness should be examined on 2nd February, 2018. The prayer for examination of the applicant de bene esse on commission was declined. However, it new transpires that the testamentary matter has been marked as a contentious cause and the said matter is appearing before the learned Judge having the determination."
Without dwelling on what may have weighed with the learned Judge for rejecting the prayer for commission, in the view of this court, 11 months can make a substantial difference in the physical condition of a lady who is 84 years old. It cannot be said that the plaintiff has come to this court without medical reports or is urging his case on the bare allegation that the health of a witness would not permit her to be examined in court.
Mr. Mitra forcefully urges that Meena Bhandari is indeed not in a position to come to court or sit through the rigours of taking of evidence in any other place save and except her residence. Given the circumstances as made out by counsel, the decision of the Division Bench of this court in Ashrant Bhartia would be an answer to the present impasse while taking into account the 6 objections raised by counsel for the defendant. Since it is a testamentary suit, the contention of counsel for the defendant, that the demeanour of a witness is significant, cannot be discounted. Hence, recording the evidence of Meena Bhandari by video during commission would be an effective way to deal with the nuances of evidence which are inherent in most testamentary suits. Video recording of proceedings is now a widely-accepted mode of not only recording the evidence of witnesses but also for the participation of lawyers in proceedings sitting in jurisdictions far removed from each other.
The objection taken by Mr. Karmakar that the medical parameters disclosed do not assist the prayer of the plaintiff is considered. It should however be stated that in applications of this nature, a court cannot be expected to evaluate reports given by medical doctors. What finally matters is the physical condition of a witness who will give evidence in court and whether such a prayer is justified in the facts of the case.
It should be mentioned that if the evidence of the witness is video-recorded during commission, the defendant would be not prejudiced in any manner and the point relating to demeanour would also be taken care of. In any event, under Order XVIII Rule 17 of The Code of Civil Procedure, a court can recall a witness for further examination at any stage of the proceedings. On the points of Res judicata, even though there cannot be a different view on the ratio of the decisions cited by counsel for the defendant, a litigant can always rely on subsequent materials to show a change in circumstances. Admittedly, the 7 medical reports of November of this year were not before the Learned Judge in January 2018 when the earlier application was rejected.
Having regard to the facts as stated, this court is of the view that the case made out by the plaintiff falls within the mandate of Order XXVI Rule 1 of the Code and Meena Bhandari can be exempted from attending court for giving evidence.
In view of the above reasons, G.A. No. 3287 of 2018 is allowed in terms of prayer (a). Mr. Sudip Deb, a member of the Bar Library, is appointed Commissioner to record the evidence of Meena Bhandari at her residence. The commission should be completed within a four weeks from 3rd January, 2019 and the Commissioner is requested to file a report within a fortnight thereafter. The Commissioner will be paid a consolidated remuneration of Rs.70,000/-. Liberty is given to pray for enhancement of this amount. It is, however, directed that the evidence of Meena Bhandari will be recorded by video by a competent person or a team of professionals as may be required in the circumstances. All expenses pertaining to such video recording as well as other incidental expenses are to be borne by the plaintiff. The commissioner should ensure that the video recording takes into account not only the demeanour of the witness but also of counsel representing the parties and the parties present contemporaneously. A transcript of the evidence should also be taken.
The application is disposed of with the above directions. 8 All incidental expenses for stenographer and clerk etc. as may be required will also be borne by the plaintiff.
The Registrar, Original Side is requested to depute persons from the Court who can assist the Commission in the manner as directed and for making all documents available to the Commissioner.
(MOUSHUMI BHATTACHARYA, J.) S.Bag/A.Dey