Order 18 / rule 4. cpc
Dr. Shekhar
(Querist) 26 September 2015
This query is : Resolved
Order 18 / Rule 4. Recording of evidence by Commissioner.-
Can we apply under this rule for recording of evidences and examination of witness through video conferencing while party is overseas and can't come to India?
SAINATH DEVALLA
(Expert) 27 September 2015
Repeated 7th similar query by the author by changing names.
Dr. Shekhar
(Querist) 27 September 2015
Sir , whom can we apply to District Judge if its family court or to HC?
T. Kalaiselvan, Advocate
(Expert) 02 October 2015
For recording evidence through video conferencing mode, a petition to be filed in the same court where the trial is going on.
Dr. Shekhar
(Querist) 03 October 2015
Adv. Kailaiselvan Sir, Thanks. When I apply to the trial court then do they give the date for video conferencing and inform the fees to be deposited, and they inform the embassy in the foreign country where I am located? Kindly clarify what i need to do and how do I organise since going overseas soon
R.K Nanda
(Expert) 05 October 2015
consult local lawyer.
Dr. Shekhar
(Querist) 05 October 2015
Sir, any expert kindly help. My lawyer is not clear on the procedure
Guest
(Expert) 05 October 2015
Your queries are mostly of academic type.
Is this query related to your other query posted at the following link about production of original marriage certificate?
http://www.lawyersclubindia.com/experts/Evidences-originals-or-attested-photo-copies-562916.asp
prabhakar singh
(Expert) 05 October 2015
Whatever you are doing is better known to you but if your case is in family court then you can apply as thought of as a family court has discretions to record evidence and regulate its' procedure as it thinks fit.
o.18 r.4 CPC does not lay down a rule to record evidence by video conferencing and regular civil courts do not have such a wide discretion, but s.151 CPC may be invoked in appropriate circumstances.
Dr. Shekhar
(Querist) 05 October 2015
Dear sir, Thanks. But if it is an ex parte case where the respondent never appeared. And the petetioner has to go overseas for job for long. Can he give an application under o 18 r 4 rw sec 65 of IEA for video conferencing. And if not then under which sec or rule application for video conferencing is possible? Also to let know that affidavit as chief examination has been already submitted to hon'ble court personally before going overseas by petetioner. But the evidences couldnot be tendered becuase court has lots of cases and no time as said by Judge. Maybe there is no need of physical presence for tendering as exparte and no party to opposse the evidences.?
T. Kalaiselvan, Advocate
(Expert) 05 October 2015
Giving a boost to the justice delivery system which is afflicted with delays due to various reasons, including non-availability of witnesses for examination, the Supreme Court has upheld the recording of deposition through video-conferencing.
The judgment comes in a case where a Mumbai trial court had allowed video-conferencing of a US based doctor Ernest Greenberg who was unable to come to India to depose in a case. He had agreed to give evidence through video-conferencing.
He had given an opinion against operating on a woman cancer patient. But ignoring the advice, two Indian doctors operated on her leading to her death.
Here is an excerpt in this regard by the Delhi high court
Examination of Witness through Video Conferencing
188 (2012) Delhi Law Times 202
Delhi High Court
J.R. Midha, J.
MILANO IMPEX P. LTD.—Plaintiff
versus
EGLE FOOTWEAR P. LTD. & ORS.—Defendants
CS (OS) No. 676 of 2007—Decided on 25.5.2011
Civil Procedure Code, 1908 — Order 18 Rule 4 — Examination of Witness through Video Conferencing — Grant of Permission — Conditions — Witness is constituted attorney of defendants and is based in Moscow, Russia and is unable to visit India for recording of his evidence but willing to do so through video conferencing — It is directed that evidence of plaintiff shall be recorded through video conferencing between Delhi, India and Moscow, Russia — That in Delhi, video conferencing shall be conducted in facilities available in Annexe Block of Delhi High Court — Registrar (Computers) of this Court is appointed as coordinator with regard to technical aspects of video conferencing in Indian High Commission Moscow, Russia — Indian High Commission at Moscow, Russia shall nominate a Senior Officer not below rank of Deputy Secretary of India to facilitate video conferencing — Cross-examination as far as practicable be proceeded without any interruption and without granting unnecessary adjournments — Deposition of witness shall be signed immediately in presence of nominated officer of Indian High Commission — Witness shall be examined during working hours of Indian Courts — Other necessary directions issued in this regard by Court.
Audio-Video Link is a technology developed by electronic media to avoid the physical presence and to avoid the loss in time. It is a speedy method evolved for the purpose of speedy decision. Even in Audio-Video Link party is definitely present in person and his presence is reflected on the screen. The word Rs. in attendance’ under Order 18 Rule 3(4)(2) is to be understood as the person being present and it need not be physical presence. The presence on the screen is as good as attendance for the purpose of Order 18 Rule 3(4)(2) of the Rules.
After all law only requires the presence of the witness and it does not matter as to how he is present.
xxx xxx xxx
Order 18 Rule 3(4)(3) which provides for recording evidence either by writing or mechanically in the presence of a Judge. Audio-Video Link is a mechanical process where the party is present on the screen and there is a mechanical divisor recording the evidence…”
Hope the above information was useful.
Dr. Shekhar
(Querist) 05 October 2015
Dear Sir, Thanks so much. But coming back to my above question and the given facts where its an ex parte evidence case. And in view of the Rule 4 o 18, the evidence stage consists of examination in chief by way of affidavit and the cross examination.
I have submitted the examination in chief affidavit to the court personally but the evidences are left to be tendered. As no opposition party so no one to cross examine me or evidences except the court. Cant these evidences which is mainly marriage registration and licence be tendered to the embassy india overseas where i be located who will be as commission under rule 4?
And hence the request for video conferencing can be made to trial court before my leaving overseas for this purpose.
