Calcutta High Court
Narendra Kumar Berlia vs Om Prakash Berlia & Ors on 21 January, 2019
Equivalent citations: AIR 2019 CALCUTTA 104, (2019) 1 CAL HN 554 (2019) 2 ICC 826, (2019) 2 ICC 826, AIRONLINE 2019 CAL 89
Author: Moushumi Bhattacharya
Bench: Moushumi Bhattacharya
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble JUSTICE MOUSHUMI BHATTACHARYA
GA No. 3136 of 2018
CS No. 79 of 2011
Narendra Kumar Berlia
Vs.
Om Prakash Berlia & Ors.
For the Plaintiff : Mr. Jishnu Chowdhury, Adv.
Mr. Sarvapriya Mukherjee, Adv.
Mr. Arif Ali, Adv.
Mr. Arnab Sardar, Adv.
Mr. Yashovardhan Kochar, Adv.
Mr. Ratul Das, Adv.
For the Defendant : Mr. Samit Talukdar, Sr. Adv.
Nos. 1, 2, 9 & 10 Ms. H. Chakraborty, Adv.
Mr. Satadeep Bhattacharyay, Adv.
Mr. S.R. Kakrania, Adv.
Guardian ad-litem for : Ms. Iti Dutta, Adv.
Defendant No. 4
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For the defendant Nos. 3, 5 & 16 : Mr. Aniruddha Mitra, Adv.
Ms. D. Adhikari, Adv.
For the Defendant No. 6 : Mr. Ratnanko Banerji, Adv.
Mr. Sayed Huda, Adv.
Mr. Tarun Aich, Adv.
Mr. S. Chowdhury, Adv.
Heard on : 27.11.2018, 12.12.2018,
18.12.2018.
Delivered on : 21.01.2019.
Moushumi Bhattacharya, J. :
1. In this application, the plaintiff has sought to be examined on Commission.
2. The grounds for seeking to be examined on Commission are essentially two-fold. First, there are a large number of documents (the application mentions 105) disclosed by the plaintiff and the defendants, all of which would be required to be proved. Second, an over-burdened suit court; an unfortunate reality. The opposition to the application centres around the lack of properly made out grounds for allowing an application of this nature and the judicial discretion involved in refusing commissions for the asking. 3
3. The question which really calls for adjudication is whether Rule 4A of Order XXVI of The Code of Civil Procedure, 1908 (CPC) renders redundant the preceding Rules of Order XXVI and gives a court powers to grant commissions solely on the touchstone of "interest of justice or for the expeditious disposal of the case or for any other reason".
4. Mr. Jishnu Choudhury, learned counsel appearing for the plaintiff is of the view that Rule 4A has indeed changed the scope of issue of Commissions and relies on the non-obstante clause with which the Rule begins. On the factual aspect, he submits that this is a complicated suit where the plaintiff has sought partition of a joint family estate, including shares held in various family companies. Of the 22 defendants in the suit, 10 have filed written statements. It is submitted that each of the 11 issues framed would involve a detailed adjudication, in facts as well as in law. Counsel expects that the documents disclosed would involve extensive cross-examination which would be elaborate and time-consuming. Counsel submits that although the plaintiff has deposed for four days, it is imperative that a Commission be issued for further examination of the plaintiff in the interest of justice and for the expeditious disposal of the suit. It is also submitted that having regard to the number of suits pending in this court and the time allocated for witness- action, it would be in the interest of the overall efficiency in the disposal of matters that the instant application be allowed. Counsel submits that the circumstances pleaded in the application fit squarely into the requirements of Rule 4A where a court has only to see whether interest of justice and expeditious disposal of the case would be served. Counsel relies on Goutam 4 Kumar Agrahari Vs. Stock Holding Corporation of India Ltd. reported in (2016) SCC Online Cal 1421 which discussed Rule 4A and held that a court should see the inconvenience of witnesses but should be in favour of issuing orders for Commission. In Sajani Devi Bhartia Vs. Ashrant Bhartia reported in AIR 2015 (NOC 807) 302, the demeanour of a witness being a relevant factor (as held in Panchkari Mitra reported in AIR 1924 Cal 971) was rejected and the court held in favour of issue of Commission in view of Rule 4A. In Smt. Pushpa Devi Bangur Vs. M.B Commercial Company Ltd. reported in (2017) 1 Cal LT 403, it was held that the case of the party making an application for Commission must be bona fide and a court has only to see whether an order for Commission would result in injustice to the parties. The wide discretion of a court in such matters was noted. The demeanour argument was diluted in the aforesaid case as well as in Smt. Sucharita Sarkar Vs. Utpal Mukherjee reported in (2016) SCC Online Cal 6266. Reliance is also placed on (2010) SCC Online Bom 590 where the Bombay High Court held that it would be impossible to hear suits expeditiously if the task of recording of evidence in every case has to be performed by a court. This concern was expressed in SPML Infra Ltd. Vs. Bhusan Power & Steel Ltd. reported in (2015) SCC Online Cal 852. Salem Advocate Bar Association, T.N Vs. Union of India reported in (2005) 6 SCC 344, which held that Rule 4A of Order XXVI has been introduced for expeditious disposal of the suit and the importance of a court observing the demeanour of a witness was rejected.
5. Mr. Samit Talukdar, learned senior counsel appearing for the defendant no.1 and opposing this application, relies primarily on the framework of Order 5 XXVI before the amendment was brought in with effect from 1st July, 2002. According to Mr. Talukdar, Rule 4A must be read harmoniously with the preceding rules, namely, Rules 1and 4. According to him, under Rule 1, a Commission can be issued for the examination of any person resident within the local limits of a court's jurisdiction who can be exempted from attending court or who suffers from sickness or infirmity. Rule 4 gives a court suitable powers for examination of a person who is resident beyond its local limits and who may not be available to give evidence in a court for reasons of having to travel outside the court's jurisdiction. In essence, he submits that notwithstanding the wording of Rule 4A, which was inserted later, Rule 4A cannot render Rules 1 and 4 otiose and that the Legislature intended that a court should consider the practices which were initially there before issuing an order for Commission. He urges that an applicant must show that the proposed witness within jurisdiction (Rule 1) is sick or infirm or that there is an urgency to record the evidence of a witness resident outside of Commission since there is a possibility of the witness leaving the limits before the date fixed for his examination in court (Rule 4). He also submits that Chapter XIV of the Original Side Rules of this court only contemplates recording of evidence in the presence of and under the superintendence of a judge and does not contain any provision akin to Order XXVI Rule 4A of the CPC. He contends that the Original Side Rules would naturally override any provision of the CPC in the case of a Chartered High Court.
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6. Mr. Talukdar further adds that Rule 4A is not a unique proposition and is a reiteration of Order XXVI Rules 3 and 4 where different kinds of exigencies are met with the evidence of a witness being sent for Commission. According to him, Rules 3 and 4 have been structured in the interest of justice and further that Rule 4A is fettered by "...........resident within the local limits of its jurisdiction..........". He relies on Krishan Kumar Vs. State of Rajasthan reported in AIR 1992 SC 1789 on the rule of harmonious construction, which according to him, should be applied in the instant case.
7. These arguments are reiterated by Mr. Ratnanko Banerji, learned senior counsel, for defendant no.6 who further contends that the grounds made out in the instant application are completely inadequate and that 105 documents cannot be a ground for sending a continuing examination-in-chief to a Commission. It is also submitted that the plaintiff is essentially putting the onus on this court for not being able to allocate sufficient time for taking the evidence of the plaintiff or give the assurance that the suit would be disposed of expeditiously. It is further submitted that the order passed by the Hon'ble Supreme Court on 12th August, 2014, requesting this court to ensure that the suit be heard expeditiously and preferably concluded within a year, cannot be a reason for allowing the application since the carriage of proceedings in the suit are with the plaintiff who decided not to take any steps in compliance with the order of the Supreme Court. This application was filed by the plaintiff in November 2018.
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8. Having considered the arguments of counsel representing the plaintiff and the defendants, the only issue which calls for adjudication is whether Rule 4A of Order XXVI of The Code of Civil Procedure, has changed the law with regard to issue of Commissions by making sickness, infirmity or other considerations subservient to expeditious disposal of cases or even the all encompassing touchstone of "interest of justice".
9. It must be mentioned that this issue has been visited in several decisions of this court from 2014 onwards. In Sucharita Sarkar, Ashrant Bhartia and Sajani Devi Bhartia, the importance of a court having the benefit of observing the demeanour of a witness was substantially diluted. (Sucharita Sarkar, Sajani Devi Bhartia and Ashrant Bhartia were, in fact, all testamentary matters). In the cases relied on by counsel for the plaintiff, however, Commission was issued on the ground of severe inconvenience of the concerned witness. This needs to be elaborated further. In Sucharita Sarkar, the attesting witness was said to be infirm and suffering from a particular ailment; the attesting witnesses in Ashrant Bhartia and Sajani Devi Bhartia were busy advocates living and working in a solicitor firm in New Delhi; the proposed witness in SPML Infra had to frequently travel to different projects of the company and found it difficult to travel to Kolkata on a regular-basis for giving evidence; in Goutam Kumar Agrahari, the witness intended to stay in Sahaganj where his ancestral property was situated; the concerned witness in Pushpa Devi Bangur, was from a conservative family and had constraints in appearing in public for giving evidence in open court. These factors are important since the courts took into consideration the particular reasons 8 referred to and the order allowing Commission has to be seen in that context. Rule 4A of Order XXVI has been discussed in detail both in Sajani Devi Bhartia and Pushpa Devi Bangur, where it was observed, inter alia, that after the introduction of Rule 4A, even a witness within jurisdiction can be examined on Commission for the reasons mentioned in the said Rule. It was further held that Chapter XIV of the Original Side Rules will not stand in the way of an order relating to issue of Commission under Order XXVI of the CPC. In Pushpa Devi Bangur, this court held that Rule 4A read with Order XVIII Rules 4 and 19 indicate that a court has been vested with wide discretion for issue of Commission on certain specified circumstances if the court's conscience is satisfied that the circumstances warrant issue of Commission.
10. The instant case is somewhat different. The plaintiff, who has been examined in-chief on four occasions, has applied to be examined on Commission, not for reasons of sickness or work or travel preoccupations; in essence, admittedly no grounds have been made out under Rules 1 or 4 of Order XXVI. The plaintiff carries on business from Jamunalal Bajaj Street, within the jurisdiction of this court and appears to be in fine fettle (at least from appearances). The only ground taken in the application is that of interest of justice and expeditious disposal of the case. After stating that there are 22 defendants, 10 written statements, 11 issues framed and 105 documents entailing extensive evidence, the application shifts the spotlight to a court weighed down with a long list of suits to be heard and decided. The relevant paragraph from the application reads as:
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"Having regard to the nature of complications, the volume of documents and the nature of evidence which shall be led, it is evident that a large quantum of time would be taken. There are a large number of suits which are pending adjudication and the time taken for the purpose of examination of the plaintiff is such that it would not be possible for the Hon'ble Court to have the examination recorded in the near future."
11. The above not only puts the onus on a court to decide on a Commission (relieving itself of some of the work load) but raises a red-flag to the efficiency of a court in allocating sufficient time for recording of evidence and ensure speedy disposal of pending suits. This would naturally lead to other issues; whether Commissions can be granted for the asking simply on the ground of an over-burdened court and how much of this is required to be pleaded by a litigant. This court is mindful of the strong opposition of counsel for the defendants that Commissions cannot be issued solely on the strength of Rule 4A and that the instant application in its present form is wholly inadequate for the order it seeks. To answer the second part first, one may ask what would constitute sufficient grounds for appointment of Commission solely for the three conditions envisaged in Rule 4A? Would it have to be an application with statistics as to the number of cases pending in a suit court or the time allocated for taking evidence in each matter or even the disposal at the end of a day? Or would it entail a larger comment on the number of courts allocated to hear suits thereby easing the pressure of time for adjudication of matters? In the view of this court, the legislative intent behind introducing Rule 4A with the amendment of 1999, is a decisive step forward in moving matters involving elaborate evidence out of the courts to the focused arena of a Commissioner. Rule 4A is not only intended to relieve a court of the pressure of litigation but 10 also ease the burden on litigants in bringing witnesses for giving evidence, wait the whole day for matters to be called (mostly in a crowded court room without a place to sit), go away without getting a chance to depose and return to court the following day for another day-long wait. These days, it is difficult to conceive of a court which has been blessed with a short list of suits for decision and disposal. Hence, this cannot be a matter for falling back on numbers but a reality check on the weight of matters pending in most courts. The law-makers must have had this reality in mind at the time of framing Rule 4A and specifically inserting the non-obstante clause in it. Conditions of illness, infirmity or impending travel have all been made subservient to interest of justice, expeditious disposal of the case or "for any other reason". The only condition mentioned is that the witness must be resident within the local limits of a court's jurisdiction. The 163rd Report of the Law Commission of India published in November 1998 (before the CPC was amended in 1999 and Rule 4A inserted with effect from 1st July, 2002) that the "proposed Rule 4 was an extremely welcome step" having regard to the heavy workload and the hours devoted every day by a judge for recording of evidence.
12. The opposition to this application has not crystallized any grounds which can persuade this court to hold that issue of Commission would not be in the interest of justice. 105 documents or 22 defendants is not the deciding factor, what makes the cut is the speedy disposal of the case. This court would be hesitant to reserve substantial time or designate days for the hearing of only one suit which may involve factual complications and voluminous documents. The solution, therefore, would be to send a matter before a Commissioner 11 where at least uninterrupted recording of evidence can be assured. An emphasis on 22 defendants and 105 documents alone would set an uncertain precedent as litigants would then be encouraged to take refuge in numbers. There may be suits of a limited number of parties and documents but entailing an in-depth enquiry into the facts and law. From the submissions made, it cannot be said that the evidence in this case can be completed in a few days.
13. Rule 4A, in fact, encourages a court to permit considerations of interest of justice and expeditious disposal to dominate over any other factor for which a prayer for Commission could have been rejected. In any event, there are sufficient safeguards contained in the CPC itself including under Order XVIII for a court to call a witness back for questioning. The introduction of a video recording of a Commission as granted in Ashrant Bhartia also takes case of the demeanour issue. In short, most of the perceived roadblocks to grant of Commissions have been diluted in the last few years. There is no reason therefore to limit Rule 4A, making way for quick disposal of suits involving evidence, to a pointless insertion. If this means opening the floodgates to asking for Commissions as a matter of course, so be it. In fit cases, the metaphorical gates may be required to be opened to allow the building up (of cases) to ease. Besides, courts have always taken the lead in showing the way forward in areas where proactive action is called for. What is required is an efficient and workable system of trained Commissioners who are equipped to recording of evidence, which is already a system prevalent in some other courts in the country. If the recording of evidence is given to Commissioners in appropriate cases, a court can devote effective time to other aspects of the 12 adjudication process which would be conducive to speedy disposal of matters. This surely is the legislative intent behind all enactments in general and Rule 4A of the CPC in particular. Easy as it may read, Rule 4A is deceptive as not every fact situation would pass the tests put in the said Rule. While clearing the roadblocks to issue of Commissions contained in the preceding Rules, the court is given the power to sift through applications to choose only those which the court deems worthy of satisfying the "interest of justice" criterion. Expeditious disposal is comparatively more straightforward since that would be more a matter of numbers or involving elaborate evidence. "...........or for any other reason..........." gives a kind of a blank cheque to a court for filling in the reason before issuing an order for Commission. However, as rightly pointed out by Mr. Talukdar, all three conditions are subject to the proposed witness being within the local limits of a court's jurisdiction, which is the fact in this particular case.
14. It should be reiterated that in the case of Salem Advocate Bar Association, T.N Vs. Union of India and Ashrant Bhartia Vs. Jagmohan Kerjriwal and Sajani Devi Bhartia Vs. Ashrant Bhartia, the demeanour argument was noticeably curtailed as the court took advantage of technology in having the evidence of a witness video recorded. This obviously paved the way for a court to observe the demeanour of a witness deposing before a Commissioner at any subsequent point of time if the court thought it fit to do so. In Salem, it was held that if the Legislature intended to save judicial time by providing for a Commission, that cannot be defeated on the ground of a court being deprived 13 of watching the demeanour of witnesses. Amendments introduced to Order XVIII-"Hearing of the suit and examination of witnesses", specifically that of Rule 19 inserted with effect from 1st July, 2002, gives undiluted power to a court to direct statements of witnesses to be recorded on Commission under Order XXVI Rule 4A. Incidentally, Rule 19 of Order XVIII begins with a non- obstante clause similar to that of Order XXVI Rule 4A. But foremost among all justifications, when Rule 4A has been brought in with a straight mandate for facilitating clearing of the backlog of cases, should a construction be made to strip the forward-looking Rule of its efficacy?
15. In the view of this court, the time has come for issue of Commission for the asking subject to a proper exercise of discretion by a court and the decision articulated with reasons. Rule 4A is not an unfettered enabler which can be used in each and every matter for grant of Commission. The applicant must show that there are credible grounds which would satisfy the twin conditions envisaged in the Rule. "Or for any other reason" in Rule 4A has pushed the boundaries of such discretion to limits where interest of justice or expeditious disposal of cases will have to be seen against a huge backlog of cases and the pressure of time on courts. Rule 4A has therefore made Rule 1 redundant for persons resident within the local limits of a court's jurisdiction, while retaining Rule 4 to the extent of those residents beyond the local limits of a Court's jurisdiction and subject to the conditions mentioned under Rule 4. 14
16. In the case before me, the Plaintiff, who seeks to have his evidence recorded by a Commissioner, is resident within the local limits of the jurisdiction of this court. The defendants have not adduced any facts to show that the evidence can be completed within a short time or that the documents disclosed are not numerous. This court is satisfied that the facts call for appointment of a Commissioner to record the plaintiff's evidence as it would facilitate expeditious disposal of the case which would be in the interest of justice.
17. In view of the above, GA 3136 of 2018 is allowed in terms of prayers (a) and (b). Mr. Domingo Gomes, Advocate, is appointed Commissioner for recording the evidence of the plaintiff, Narendra Kumar Berlia. The Commission is to start from 1st February, 2019 and be completed within four weeks from that day and the Commissioner is requested to file a report within a fortnight thereafter. The Commissioner will be paid a consolidated remuneration of Rs. 80,000/- at the first instance which may be increased with the leave of court. All incidental and miscellaneous expenses for the Commission, including payment for Clerkage and Stenographer for assisting the Commissioner will be borne by the plaintiff. The Commission will be held at an appropriate place to be decided by the Commissioner. The Registrar, Original Side, is requested to make the records of the instant case available to the Commissioner and to depute such persons from the court for the Commission as he may consider fit.
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18. The application is disposed of with the above directions.
Urgent Photostat certified copy of this Judgment, if applied for, be supplied to the parties upon compliance of all requisite formalities.
(MOUSHUMI BHATTACHARYA, J.)