Delhi High Court - Orders
Ms. Geeta Statton vs Shri Rajiv Jain & Ors on 8 August, 2022
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 134/2017 & I.As. 12103/2019, 3035/2020
MS. GEETA STATTON ..... Plaintiff
Through: Ms. Mala Goel, Mr. Parvinder,
Advocates
(M:9312401950;email:mgadvo
[email protected])
versus
SHRI RAJIV JAIN & ORS ..... Defendants
Through: Mr. Dinesh Monga, Advocate
for D-1 & 3
Mr. M. Hasibuddin, Advocate
for D-1
(M:9810468429;email:m.h.n.as
[email protected])
CORAM:
HON'BLE MS. JUSTICE MINI PUSHKARNA
ORDER
% 08.08.2022 I.A. 12103/2019 (u/S 151 CPC read with Chapter XI Rule 38 and annexure B of the Delhi High Court (Original Side) Rules, 2018)
1. This is an application on behalf of the plaintiff through Attorney Shri S.K. Jain under Section 151 of CPC read with Chapter XI Rule 28 and Annexure „B‟ of the Delhi High Court (Original Side) Rules, 2018, (hereinafter called „the Rules‟)
2. It is the case of the plaintiff that the present suit for partition, possession, declaration, permanent injunction and rendition of accounts has been filed on behalf of the plaintiff. The plaintiff has already filed her examination-in-chief by way of affidavit which she Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:10.08.2022 13:19:51 signed in U.S.A and sent to her counsel in India for filing the same before this Court.
3. It is stated on behalf of the plaintiff that the plaintiff is residing at 8910, YEAGER STREET, RENO 89506, N.V., USA and has two small sons aged 3 year and 5 year. Thus, it is contended that since the children of the plaintiff are small, she cannot leave them behind in USA and present herself for cross examination. Thus, it has been contended that since the plaintiff is not in a position to come to India for her cross examination, thus, it is requested that her cross examination be conducted by Video Conferencing.
4. Attention of this Court has been drawn to the affidavit of the plaintiff dated 10.02.2020, which has been filed in terms of the directions of this Court dated 20.11.2019. The affidavit on behalf of the plaintiff states as follows:
"1. I the deponent have filed application under Section 151 CPC read with Chapter XI Rule 38 and Annexure 'B' of the 'Delhi High Court, Original Side Rules, 2018' which was registered as I A No. 12103 of 2019 praying for my evidence/cross examination to be recorded by Video Conferencing as I am unable to come to India and present myself for cross examination.
2. I, deponent, Plaintiff wrote letter dated 3.1.2020, to The Consulate General of India', San Francisco, USA' regarding Recording of evidence of myself/deponent by Video Conferencing. Copy of said letter is annexed to my this affidavit as ANNEXURE 'A'.
3. In response to the same the 1, the deponent have received an e-mail dated 9.1.2020 from Ms. Sumati S. Rao, Consul, (CIC &Visa), Consulate General of Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:10.08.2022 13:19:51 India, San Francisco-4156680595 replying that the Consulate does arrange for recording of evidence through video conferencing, if and when directed by the Hon'ble Court in India and that it is the Hon'ble Court that decides time and level of officer to be appointed to conduct the video conferencing as also the amount to be paid to the said person. Copy of the same is ANNEXURE 'B' to this affidavit.
4. Hence my cross examination may be recorded at the Consulate of India, San Francisco, U.S.A.
5. I, Geeta Statton, the deponent, am ready and will be present on the date fixed for my evidence/cross examination to be conducted by Video Conferencing at the Consulate General of India, San Francisco.
6. I the deponent am ready to and will bear the expenses for my evidence/cross examination to be conducted at the Consulate General of India, San Francisco by Video Conferencing. However I will not pay any expenses of the counsel or counsels of Defendants or the Defendants."
5. Along with the affidavit of the plaintiff in terms of the order dated 20.11.2019, an email dated 09.01.2020 issued by the Consulate General of India, San Francisco has also been attached. The said email dated 09.01.2020 states as follows:
"Dear Ms Statton, Please refer to your letter on the above subject dated January 3, 2020. This Consulate does arrange for recording of evidence through video conferencing if and when directed by the Hon'ble Court in India. Please note that it is the Hon'ble Court that decides the time, the level of officer to be appointed to conduct the video conferencing as also the amount to be paid to the said person.
With Regards"Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:10.08.2022 13:19:51
6. A perusal of the aforesaid shows that the Consulate General of India in San Francisco, USA has categorically stated that the Consulate arranges for recording of evidence through video conferencing as and when directed by any court in India. Further, in the said email it is also stated that it is for the court to decide time, level of officer to be appointed and also the amount to be paid to the said officer.
7. Counsels for the defendant Nos. 1 to 3 are present and submit that they have no objection if the present application is allowed.
8. I have perused Chapter XI, Rule 38 of the Rules, which provides for recording of evidence through video conferencing. I have also perused „Annexure B‟ of the Rules, which gives in detail the preparatory arrangements for recording of evidence through video conferencing.
9. With regard to recording evidence through video conferencing, Hon‟ble Supreme Court in the case of The State of Maharashtra and P.C. Singh Vs. Praful B. Desai and Ors., (2003) 4 SCC 601, has held as follows:
"26. ..........Undoubtedly, an officer would have to be deputed, either from India or from the Consulate/Embassy in the country where the evidence is being recorded who would remain present when the evidence is being recorded and who will ensure that there is no other person in the room where the witness is sitting whilst the evidence is being recorded. That officer will ensure that the witness is not coached/tutored/prompted. It would be advisable, though not necessary, that the witness be asked to give evidence in a room in the Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:10.08.2022 13:19:51 Consulate/Embassy. As the evidence is being recorded on commission that evidence will subsequently be read in court. Thus no question arises of the witness insulting the court. If on reading the evidence the court finds that the witness has perjured himself, just like in any other evidence on commission, the court will ignore or disbelieve the evidence..................The officer deputed will ensure that the respondent, his counsel and one assistant are allowed in the studio when the evidence is being recorded. The officer will also ensure that the respondent is not prevented from bringing into the studio the papers/documents which may be required by him or his counsel. We see no substance in this submission that it would be difficult to put documents or written material to the witness in cross-examination. It is now possible, to show to a party, with whom video-conferencing is taking place, any amount of written material. The officer concerned will ensure that once video-conferencing commences, as far as possible, it is proceeded with without any adjournments. Further, if it is found that Dr Greenberg is not attending at the time(s) fixed, without any sufficient cause, then it would be open for the Magistrate to disallow recording of evidence by video-conferencing. If the officer finds that Dr Greenberg is not answering questions, the officer will make a memo of the same. Finally, when the evidence is read in court, this is an aspect which will be taken into consideration for testing the veracity of the evidence............."
10. In view of the submissions made before me, the present application is allowed and Ms. Geeta Statton is permitted to record the testimony and cross examination through audio and video conferencing subject to the following conditions:
Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:10.08.2022 13:19:51i. Evidence of the witness, Ms. Geeta Statton shall be recorded through video conferencing between Delhi, India and San Francisco, USA.
ii. In Delhi the video conferencing shall be conducted in the facilities available in the Delhi High Court. iii. Mr. H.K. Arora, Registrar (IT) of this Court is appointed as coordinator with regard to the technical aspects of video conferencing in India.
iv. The Consulate General in San Francisco shall nominate a senior officer not below the rank of Deputy Secretary of India to facilitate the video conferencing. v. The officer nominated by the Consulate General of India shall coordinate the video conferencing arrangements in San Francisco and shall remain present at the time of recording of the evidence of the witness, Ms. Geeta Statton. vi. The officer nominated by the Consulate General of India in terms of the directions in the preceding paragraph shall ensure that apart from his own presence, only counsel for the plaintiff/defendant is present at the time of video conferencing. He shall ensure that no manner of prompting by words or signs or by any other mode is permitted. vii. The officer nominated by the Consulate General of India shall verify the identity of the witness before commencement of her examination.
viii. As soon as the identification part is complete, oath will be administered by the Joint Registrar (Judicial) through the Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:10.08.2022 13:19:51 media as per Oaths Act, 1969.
ix. With respect to the working hours during which the witness shall be examined, the same shall be decided by the Registrar (IT) in consultation with the Consulate General of India, through the counsel appearing for the plaintiff. It is made clear that the Registrar (IT) at the time of fixing time of examination of Ms. Geeta Statton will take into account the convenience of the Indian courts as well as the convenience of the Consulate General of India, San Francisco. The plea of any inconvenience on account of time difference between India and San Francisco shall not be allowed.
x. The cross examination, as far as practicable, be proceeded without any interruption and without granting unnecessary adjournments. However, discretion of the court (Joint Registrar) shall be respected.
xi. The court, i.e., the Joint Registrar may record any material remarks regarding the demeanour of the witness while on the screen and shall note objections raised during the recording of the evidence.
xii. The deposition of the witness shall be sent immediately in presence of the nominated officer of the Consulate General of India. The said officer shall certify/attest the signatures of the witness.
xiii. The audio and visual shall be recorded at both the ends and copies thereof shall be provided to the parties at the expense Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:10.08.2022 13:19:51 of the applicant/plaintiff herein.
xiv. The plaintiff shall bear the cost/expenses of the video conferencing. The expenses for the video conferencing to be undertaken in San Francisco shall be informed to the plaintiff through counsel by the Consulate General of India. However, in case of any difficulty, the same may be communicated to the Registrar (IT) of this Court by email, who shall communicate the same to the plaintiff‟s lawyer in India. The details of Registrar (IT) of this Court are as follows:
a. Name : Mr. H.K. Arora
b. Email : [email protected]
c. Mobile No. : 9717991820
xv. The officer of the Consulate General of India, San Francisco to be nominated by the Consulate General of India shall be paid a lump sum of Rs.3,00,000/- (Rupees Three Lacs Only) as Honorarium.
xvi. The plaintiff shall deposit an amount of Rs.50,000/- (Rupees Fifty Thousand Only) as costs of preparation of certified copies with the Registry of this Court in the present case within two weeks from today. The Registry shall thereafter prepare certified copies of the entire record of the case, which shall be sent in separate folders clearly marked as Order sheets; pleadings, applications, plaintiff‟s documents and defendants‟ documents. The same shall be forwarded to the office of the Consulate General of India, San Francisco Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:10.08.2022 13:19:51 with the assistance of the Ministry of External Affairs. xvii. The record shall be made available to the officer nominated by the Consulate General of India, San Francisco for the purpose of undertaking video conferencing as it would be necessary for recording the statement and cross examination of the witness.
xviii. In case the defendants are desirous of being physically present in San Francisco at the time of recording of the evidence, it shall be open to the defendants to make arrangements at their own costs for appearance and their representation. The defendants shall ensure that prior intimation in this regard is filed in the Registry of this Court giving full particulars of the names of the persons as well as the enclosing documents of authority in respect of the persons, who shall be representing them in the proceedings. The intimation in this regard as well as documents shall also be furnished to the Consulate General of India in San Francisco.
11. The application is allowed in the aforesaid terms and is disposed off.
12. List before the Registrar (IT) for further directions on 05.09.2022 at 2:30 P.M. MINI PUSHKARNA, J AUGUST 8, 2022/ au Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:10.08.2022 13:19:51