Andhra Pradesh High Court - Amravati
Pulukuri Victor Abraham vs Vaka Venkateswarlu on 13 September, 2023
RC,J
CRP No.2422 of 2022
1
HON'BLE SRI JUSTICE RAVI CHEEMALAPATI
CIVIL REVISION PETITION No. 2422 of 2022
ORDER:
This Civil Revision Petition is filed aggrieved by the orders dated 07.09.2022 passed in I.A.No.290 of 2022 in O.S.No.22 of 2010 by the learned II Additional District Judge, Ongole.
2. The petitioners and respondent Nos.36 & 27 herein are the petitioners/defendants Nos. 26,27,32,10&12, whereas the respondent Nos.1 to 8 are the respondents 1 to 8/ plaintiffs 1 to 8 and the respondent Nos.9 to 35 are the respondent Nos.9 to 35/ defendant Nos.1 to 9, 11, 13 to 25 & 28 to31 in I.A.No.290 of 2022 in O.S.No.22 of 2010.
3. The respondent Nos. 1 to 8 filed the suit for declaration of their rights over respective items of the plaint schedule property and for consequential permanent injunction. They filed the petition in I.A.No.290 of 2022 to permit the petitioner/defendant No.12 to attend for cross- examination through video conference/ video call and the respondent Nos.1 to 8 resisted the petition by filing counter. Upon considering the facts and circumstances of the case and the submissions made by learned RC,J CRP No.2422 of 2022 2 counsel for both parties, the trial Court dismissed the said petition. The same is challenged in this Civil Revision Petition.
4. The grounds raised in the Civil Revision Petition in nutshell are, that the advocate of the party is competent to file affidavit as observed by this Court in G.Krishna Murthy vs. Hemalatha Chit Funds Pvt. Ltd., and dismissal of the petition on that ground is not tenable. Further, the trial Court had completely failed to take note the note the facts and circumstances under which the petitioner was constrained to file the petition, the change in VISA Rules & Regulations subsequent to Covid-19 and also the categorical observations of the Hon'ble Supreme Court that a witness, who is residing in a far away distance, can be examined through online. The trial Court did not even consider the age of the petitioner and the facts and circumstances that prevented the petitioner from coming down to India to attend the Court to face cross-examination is beyond his control and that too no prejudice whatsoever would be caused to the other side in allowing petition. The trial Court completely ignored Order-18, Rule 4(2) that provides for recoding of evidence either by Court or by Commissioner. The Trial Court, instead of ordering the petition for cross- examining the witness online/video conferencing by appointing an RC,J CRP No.2422 of 2022 3 Advocate, in utter ignorance of law dismissed the petition. Hence, prayed to allow the Civil Revision Petition.
5. The first respondent filed counter affidavit in this Civil Revision Petition, denying the averments of the Civil Revision Petition inter alia contending that, though the respondent Nos.36 & 37 who are the petitioner Nos.1 and 4 in the petition and defendant Nos. 10 & 27 in the suit is very much available to depose the affidavit, however, suppressing his availability and without giving any cogent reasons for the failure of the 18th respondent in deposing the affidavit, the counsel for the petitioner deposed the affidavit. Thus, the affidavit not having been deposed either by the petitioner or by his GPA holder, is liable to be dismissed. Further, the affidavit is bereft of any cogent reasons and no material documents are placed explaining the difficulties or reasons that prevented the petitioner to come down to India to depose before the Court. Moreover, the affidavit filed by the petitioner on being suggested by the trial Court, does not disclose any sufficient cause, except stating that final processing steps of his application for I-485 Application are in progress, which was the situation prevailing in the year 2022. Apart from that, the affidavit nowhere shows his inclination to come down to India. Thus, there are no bonafides RC,J CRP No.2422 of 2022 4 in the petition, since the petitioner somehow wants the Court to accommodate his flimsy reasons. Adding to the above, the High Court of Karnataka in TG Veera Prasad & Ors v. Prakash Gandhi & Ors (W.P.No.8283 of 2022) held that consent of other party is necessary for recording of evidence by Video Conferencing. The trial Court had rightly dismissed the petition. There are no valid and justifiable grounds warranting interference of this Court with the reasoned order so passed. Hence, prayed to dismiss the Civil Revision Petition.
6. Heard Sri K.V.Vijaya Kumar, learned counsel for the petitioner and Sri Anup Koushik Karavadi, learned counsel for respondent Nos.1 to 17.
7. Sri K.V.Vijaya Kumar, learned counsel for the petitioner, in elaboration would submit that, after filing his chief affidavit, the petitioner left for USA and due to the circumstances beyond his control such as his application for conversion was under process, he could not come over to India to face cross-examination and resultantly, the present petition came to be filed seeking leave of the Court to face cross-examination through video conferencing. However, the Court below on flimsy grounds that the affidavit was deposed by counsel for the petitioner and that the Covid-19 restrictions were eased out as of now, dismissed the petition. The learned RC,J CRP No.2422 of 2022 5 counsel would further submit that conceding the request made by the petitioner would not cause any prejudice to the other side and moreover the same would cut short the time as well as expenditure. The learned counsel would further submit that the Hon'ble Apex in several judicial pronouncements has observed that the term 'evidence' includes electronic evidence and that video conferencing may be used to record evidence. Despite the same, the trial Court took up unreasonable approach and upon misconception of both fact and law came to an erroneous conclusion. The orders impugned is unsustainable and the same is liable to be set aside.
In support of his contentions, the learned counsel for the petitioner relied on G.Krishna Murthy vs. Hemalatha Chit Funds Pvt.Ltd. 1 , Sumati Gulhati vs. Prateek Bajaj2 and The State of Maharashtra vs. Dr. Praful B. Desai3.
8. On the other hand, Sri Anup Koushik Karavadi, learned counsel for respondent Nos.1 to 17, submitted that the reasons stated by the petitioner for seeking his cross-examination through video conferencing are flimsy, untenable besides being outdated, since they relate to the year 1 . 2006(3) ALT 416 2 . (2021) 3 RCR (Civil) 383 3 . 2003(4) SCC 601 RC,J CRP No.2422 of 2022 6 2022 but not to the current date. Further, the co-petitioners (petitioner Nos. 1 & 4 ) in the petition filed before the trial Court, who is arrayed as defendant Nos.10 & 27 in the suit, who are very much available in the suit village, may depose in the suit. However, suppressing the available of defendant Nos. 10 & 27 in the suit and without getting the affidavit deposed through them, for the reasons unknown, the Advocate deposed in the affidavit. In the absence of appropriate Rules framed by the High Courts, evidence shall not be recorded by video conferencing without the mutual consent of both the parties. Since the suit involves complex issues, mere inconvenience of a party cannot be a ground to allow him to lead evidence through video conferencing. Further, the trial Judge will be denied the opportunity of observing the demeanour and deportment of witness. The trial Court had scanned the facts as well as law governing the field in proper perspective and rightly dismissed the petition and there are no valid and justifiable grounds warranting interference with the reasoned order passed by it. Hence, prayed to dismiss the Civil Revision Petition.
In support of his contentions, the learned counsel relied on T.V.Veeraprasad vs. Sri Prakash Gandhi4.
4 . Orders of High Court of Karnataka at Bengaluru, dated 01.07.2022 (W.P.No.8283 of 2022 (GM-CPC) RC,J CRP No.2422 of 2022 7
9. Perused the material available on record and considered the submissions made by both the learned counsel.
10. In G. Krishna Murthy v. Hematha Chit Funds (P) Ltd., relied on by the learned counsel for the petitioner, it has been held thus:
"23. From the above, it is clear that all the interlocutory applications need not necessarily be signed by the party himself or herself and an affidavit can be signed either by the party himself or by an Advocate or anybody, including the clerk of an Advocate who is conversant with the statement of facts, which are necessary to be furnished for maintaining an interlocutory application."
11. In view of the above observations, the objection regarding maintainability of the petition since the accompanying affidavit was deposed not by the petitioner but by his counsel does not stand and the same does not deserve any acceptance.
12. In The State of Maharashtra vs. Dr. Praful B.Desai (supra
3), the Hon'ble Supreme Court held that Video conferencing is an advancement in science and technology which permits one to see, hear and talk with someone far away, with the same facilty and east as if he is present before you i.e. in your presence. In video conferencing both parties in presence of each other. Thus it is clear that so long as the Accused and/or his pleader are present when evidence is recorded by RC,J CRP No.2422 of 2022 8 video conferencing that evidence is being recorded in the presence of the accused and would thus fully meet the requirements of Section 273, Criminal Procedure Code. Recording of such evidence would be as per "procedure established by law".
13. In Sumati Gulhati vs. Prateek Bajaj (supra 2), the Punjab & Haryana High Court, extracted the various directions issued by the Hon'ble Supreme Court vide order dated 06.04.2020 in SMW(C) No.5/2020 as follows:
"15.....The Video Conferencing in every High Court and within the jurisdiction of every High Court shall be conducted according to the Rules for that purpose framed by the High Court. The Rules will govern Video Conferencing in the High Court and the in the district Courts and shall cover the appellate proceedings as well as trials."
14. It is further observed in the above referred decision that the Model Rules for video conferencing circulated by the Hon'ble Supreme Court also provide for appointment of a Coordinator at the Court point as well as the remote point. Clause 5.3.1 provides for appointment of the Remote Point Coordinator 'as an official of an Indian Consulate/the relevant Indian Embassy/the relevant High Commission of India'. It is necessary to refer to Clause 5.6, 8.8, 8.9, 8.11 and 8.12 which read as under:-
RC,J CRP No.2422 of 2022 9 "5.6 The Coordinator at the Remote Point shall ensure that:
5.6.1 All Advocates and/or Required Persons scheduled to appear in a particular proceeding are ready at the Remote Point designated for video conferencing at least 30 minutes before the scheduled time. 5.6.2 No unauthorised recording device is used.
5.6.3 No unauthorised person enters the video conference room when the video conference is in progress.
5.6.4 The person being examined is not prompted, tutored, coaxed, induced or coerced in any manner by any person and that the person being examined does not refer to any document, script or device without the permission of the concerned Court during the course of examination. 8.8 The Court shall obtain the signature of the person being examined on the transcript once the examination is concluded. The signed transcript will form part of the record of the judicial proceedings. The signature on the transcript of the person being examined shall be obtained in either of the following ways:
8.8.1 If digital signatures are available at both the concerned Court Point and Remote Point, the soft copy of the transcript digitally signed by the presiding Judge at the Court Point shall be sent by the official e-mail to the Remote Point where a print out of the same will be taken and signed by the person being examined. A scanned copy of the transcript digitally signed by the Coordinator at the Remote Point would be transmitted by official email of the Court Point. The hard copy of the signed transcript will be dispatched after the testimony is over, preferably within three days by the Coordinator at the Remote Point to the Court Point by recognised courier/registered speed post.
8.8.2 If digital signatures are not available, the printout of the transcript shall be signed by the presiding Judge and the representative of the parties, if any, at the Court Point and shall be sent in non-editable scanned format to the official email account of the Remote Point, where a printout of the same will be taken and signed by the person examined and countersigned by the Coordinator at the Remote Point. A non-editable scanned format of the transcript so signed shall be sent by the Coordinator of the Remote Point to the official email account of the Court Point, where a print out of the same will be taken and shall be made a part of the judicial record. The hard copy would also be dispatched preferably within three days by the Coordinator at the Remote Point to the Court Point by recognised courier/registered speed post.
RC,J CRP No.2422 of 2022 10 8.9 An audio-visual recording of the examination of person examined shall be preserved. An encrypted master copy with hash value shall be retained as a part of the record.
8.11 The Coordinator at the Remote Point shall ensure that no person is present at the Remote Point, save and except the person being examined and those whose presence is deemed administratively necessary by the Coordinator for the proceedings to continue.
8.12 The Court may also impose such other conditions as are necessary in a given set of facts for effective recording of the examination (especially to ensure compliance with Rule 5.6.4)."
15. Further, the High Court referring to the matter of record of surge in pandemic, Covid-19, stringent travel restrictions in place which makes travel from Singapore and back again impossible and that both the parties have agreed that examination of respondent be carried out through the mode of video conferencing, disposed of the revision petition directing the trial Court to record the evidence through video conferencing.
16. In T.V.Veeraprasad vs. Sri Prakash Gandhi elied on by the learned counsel for the respondent (supra 4), the High Court of Karnata at Bengaluru held thus:
"15. Secondly, the question that needs to be examined by this Court is as to whether defendant No.1 can insist for trial through video conferencing as a matter of right. Video Conferencing does have a place in the legal system. The challenge is not to exclude it but to use it with responsibility. Post pandemic situation, the Courts are compelled to adopt some alternatives, Video Conferencing is now most sought after alternative. 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 RC,J CRP No.2422 of 2022 11 the parties are unable to appear before the Court. The very object of having recourse to video conferencing is to eradicate huge time consumption. In cases where witness cannot appear before the Court without any inordinate delay, expense or inconvenience, the Court may consider recording evidence by way of video conferencing. On reading Rule 6.2 of the Rules, what emerges is that the consent of other parties is necessary.
16. 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. The video conferencing that is currently used is totally a new alternative with little knowledge of its impact on fundamental fairness. There have been a minimal number of empirical studies on video conferencing effect on the due process and the rights of the litigants. 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 Court room process. While its efficiency is clear, its effectiveness can be assessed only after securing feed backs from the Courts and Judges conducting trial 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 Judges must be made aware of the differences in the dynamic of communication between video conferencing and traditional face to face interactions.
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18. But, when it comes to comprehensive civil suits, where complex issues are involved, the Court should be cautious in allowing a party to lead evidence through video conferencing. Mere delay, expense or inconvenience cannot be a ground to allow a litigant to have an alternate mode of leading ocular evidence. The discretion should be better left to the trial Court where the litigations are pending for consideration...."
RC,J CRP No.2422 of 2022 12
17. The observations referred to supra, makes it clear that 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.
18. Now coming back to the facts of the case, the circumstances that troubled the petitioner from reaching India to depose relate to February, 2022. No material whatsoever is placed on record to show that those impediments still subsist.
19. Further, since the suit involves complex issues, the Court should be cautious in allowing a party to lead evidence through video conferencing. It cannot be lost site of the fact that, in the decision relied on by the petitioner, the High Court taking note of the travel restrictions and also the consent of both the parties, allowed the petition filed for recording the evidence through video conferencing. As of now, there are no restrictions on foreign travel. Further, there is stiff resistance by the respondent.
RC,J CRP No.2422 of 2022 13
20. In view of the above, this Court is of the view that the trial Court was justified in being reluctant to entertain the relief sought in the application as it clearly appeared to the trial Court that the petitioner is determined to subvert the adjudicative process. The Court has rightly examined the petitioner's conduct with reference to the overall interest of justice and has declined to exercise the discretion in favour of the petitioner and the same does not warrant interference of this Court. Therefore, the Civil Revision Petition deserves dismissal.
21. Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs.
As sequel thereto, miscellaneous petition, if any, pending shall stand closed. Interim orders, if any, shall stand vacated.
_________________________ JUSTICE RAVI CHEEMALAPATI 13th September, 2023 RR RC,J CRP No.2422 of 2022 14 HON'BLE SRI JUSTICE RAVI CHEEMALAPATI CIVIL REVISION PETITION No.2422 of 2022 13th September, 2023 RR