Calcutta High Court
Government Of West Bengal vs Arijeet Doss Mullick & Anr on 14 January, 2021
OD2
GA No. 1 of 2021
APO No. 7 of 2021
IA No. GA 5 of 2020
CS No. 216 of 2016
IN THE HIGH COURT AT CALCUTTA
In appeal from its
ORDINARY ORIGINAL CIVIL JURISDICTION
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
Government of West Bengal
Versus
Arijeet Doss Mullick & Anr.
Before:
The Hon'ble Justice I. P. MUKERJI
And
The Hon'ble Justice MD. NIZAMUDDIN
Date: 14th January 2021
Appearance:
Mr. Suman Dutt, Sr. Advocate
Mr. Paritosh Sinha, Advocate
Ms. Hashnuhana Chakraborty, Advocate
Mr. Tirthankar Das, Advocate
Mr. A. Mandal, Advocate
for the appellant
Mr. Anirban Ray, Advocate
Mr. Rupak Ghosh, Advocate
Mr. Debmalya Ghosal, Advocate
Mr. Rajesh Upadhyay, Advocate
Mr. Surabita Biswas, Advocate
for the respondent
The Court: This is an appeal by the Government of West Bengal
from a judgment and order dated 15th December 2020 made by a learned
single judge of this Court appointing a Commissioner for the purpose of
recording the evidence of the witness, Arijeet Doss Mullick, who is also
the first plaintiff/respondent. He was under cross-examination when this
order was made.
But we note that the last cross examination was on 4th September,
2019. The very short question which falls for determination before this
Court is whether the Court exercised its discretion properly under Order
XXVI Rule 4A of the Code of Civil Procedure, 1908.
Rule 4A is inserted below:
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"4A. Commissioner for examination of any person
resident within the local limits of the jurisdiction of the
Court.-Notwithstanding anything contained in these rules,
any Court may, in the interest of justice or for the expeditious
disposal of the case or for any other reason, issue commission
in any suit for the examination, on interrogatories or
otherwise, of any person resident within the local limits of its
jurisdiction, and the evidence so recorded shall be read in
evidence."
Under this rule a Commission can be issued only if it is necessary
in the interest of justice or for expeditious disposal of the case.
Mr. Suman Dutt, learned senior advocate appearing for the
applicant has cited Pushpa Devi Bangur v. M. B. Commercial Co. Ltd.
reported in 2016 SCC OnLine Cal 5458 whereas Mr. Ray for the
respondent has cited Gautam Kumar Agrahari v. Stock Holding
Corporation of India & Others reported in 2016(5) CHN (Cal) 403 and
Sajani Devi Bhartia v. Ashrant Bhartia reported in 2014 SCC OnLine Cal
19780.
In Gautam Kumar Agrahari case this Court laid down the following
principle:
"11. ... Rule 1 of Order XXVI of the Code of Civil Procedure is
a very old provision which provides that a person resident
within the local limits of the jurisdiction of a Court may be
examined on commission only if he is exempted by law or is
sick or infirm and for this reason is unable to attend Court.
.........
13. Rule 4 provides for issue of a commission to person
resident outside its jurisdiction. In such a case there are no
conditions mentioned, only on fulfillment of which a
commission may issue.
14. Rule 4A was inserted by Act 46 of 1999 with effect
from 1st July, 2002. It has made a sea change in the law
relating to the issuance of commission. It has vested a large
amount of discretion in the Court while issuing a commission
order. It may do so in the interest of justice or for expeditious
disposal of the suit or for any other reason. "Any other reason"
has to be read ejusdem generis with the other part of the
section. Hence, the grounds on which the Court may make an
order for commission relate to the cause of speedy justice. A
commission may also issue to see that no injustice is done to
a party ... ... ... If you consider the changes in Order XXVI
with other changes made by the legislature in the Code of Civil
Procedure, you will form an impression that the legislature is
now conscious of the convenience of the parties and leans in
favour of issuance of commission orders for expeditious trial
of suits. In the amended Order 18 rule 4, also carried out in
1999 and again in 2002, even cross-examination may be
taken by the Commissioner, [see order 18 Rule 4(2)].
15. The above circumstances disclosed in the petition
make this a fit case for appointment of a Commissioner to
take the evidence of the plaintiff, both examination-in-chief
and cross-examination."
In Sajani Devi Bhartia case this Court said:
"One does not miss the distinction that is made by the
legislature between a witness who resides within the
jurisdiction of this Court and the one who resides outside the
jurisdiction of this Court. If the Court issues a commission for
examination of a witness within its jurisdiction it has to be
satisfied that he is sick or infirm or exempted. After the
introduction of rule 4A even a witness within jurisdiction can
be examined on Commission, for special reasons. When it
comes to examination of a person living outside the
jurisdiction of the Court, the rules are lenient. In fact, no
condition has to be satisfied under Rule 4 before a
commission can be issued. In fact, this provision for
examination of a witness on commission under Rule 4 was
amended by the Amendment of 1976.
The recording of evidence in Court under the Code of
Civil Procedure, as amended in 2002 has become lenient. The
evidence may not be recorded in Court at all. Order XVIII Rule
4(1) says that the examination in chief of a witness shall in all
cases be on affidavit. Order XVIII rule 2 says that cross-
examination and re-examination shall be done either before
the Court or the Commissioner. The proviso to the sub-
Section goes on to enact that the court while appointing a
commission under the above sub-rule shall take into account
all relevant factors. So much has the importance of live
recording of evidence in the Courtroom been diluted that even
cases where demeanor of the witness is crucial or relevant the
examination can be made before the Commissioner. The
Commissioner has the duty to record the demeanor of the
witness. (see Order XVIII rule 4)
It is the duty of the Commissioner to note down any
objection taken during examination of the witness for
subsequent decision by the Court. Order XVIII Rule 4 was
amended with effect from 1st July, 2002. Order XVIII is not
followed in our High Court because Chapter XIV of the
Original Side Rules, having overriding effect (see Section 4 of
the Code of Civil Procedure) says that "The evidence of each
witness shall be taken down by or in the presence and
under the superintendence of the Judge or one of the
Judges.
Such evidence shall be taken down ordinarily in a
narrative form when in longhand, and in the form of
question answer when in shorthand, by such officers of
the Court as may be appointed for the purpose, and shall
form part of the record".
"With the advance of technology, in the field of
information broadcasting and communication recording of
evidence, through video-conferencing was recognized. Such
evidence was allowed in the case of State of Maharashtra v. Dr.
Praful B. Desai with P.C. Singh v. Dr. Praful B. Desai reported
in AIR (2003) 4 SC 601. In this case, in a criminal proceeding
one Dr. Greenberg of New York USA was sought to be
examined through video-conferencing. The complaint was
against two Indian doctors of negligently causing the death of
the complainant's wife in a Bombay hospital. Prior thereto
opinion had been taken by the complainant and his wife from
Dr. Greenberg of USA. Whilst lauding the technology of video-
conferencing the Supreme Court observed and held the
following in paragraph 20 of the report:
"Recording of evidence by video-conferencing also
satisfies the object of providing, in Section 273, that
evidence be recorded in the presence of the accused. The
accused and his pleader can see the witness as clearly as
if the witness was actually sitting before them. In fact,
the accused may be able to see the witness better than he
may have been able to if he was sitting in the dock in a
crowded courtroom. They can observe his or her
demeanor. In fact, the facility to playback would enable
better observation of demeanor. They can hear and rehear
the deposition of the witness. The accused would be able
to instruct his pleader immediately and thus cross-
examination of the witness is as effective, if not better.
The facility of playback would give an added advantage
whilst cross-examining the witness. The witness can be
confronted with documents or other material or
statement in the same manner as if he/she was in court.
All these objects would be fully met when evidence is
recorded by video-conferencing. Thus no prejudice, of
whatsoever nature, is caused to the accused. Of course, as
set out hereinafter evidence by video-conferencing has to
be on some conditions".
.........
"When a witness is resident within the jurisdiction of this
Court ordinarily he has to prove sickness or infirmity to avoid
deposing in open court and to be allowed to be examined on
Commission, unless he shows special circumstances as
required in rule 4A. There is no such requirement if the
witness resides outside the jurisdiction of this Court. (Order
XXVI rules 1 and 4)"
It can only be said that by virtue of the amendments to
Order XVIII of the Code of Civil Procedure, the right of a party
to have a witness examined in Court has been severely
curtailed. The effect of Panchkari Mitra v. Panchanan Saha
reported in AIR 1924 Calcutta 971 has been diminished.
Therefore, the dictum laid down in the said case of a valuable
right being taken away, by an Order appointing a commission
is not longer true.
Chapter XIV Rule 1 of the Original Side Rules remains a
rule more as a result of its escaping the attention of rule
makers for amendment, than for anything else. At any rate it
remains as a Rule of procedure only, special to this High
Court. But of course, subject to Order XXVI.
Therefore, in my opinion, on an application by a person
resident outside the jurisdiction of this Court for being
examined on commission, this Court has to examine the
convenience of the parties. If on consideration of he balance of
convenience, it appears, to the court that a witness so
situated should be examined on commission it should pass
such an Order. But that order, in my opinion should fully
protect the financial interest of the adversary, so that he does
not become a loser in terms of money on the examination of a
witness outside the jurisdiction of this court, on Commission.
In extremely rare cases where the Court does not have
confidence in the ability of the Commissioner to note or video
record the demeanor of the wittiness or where even video-
recording of the evidence cannot bring out the demeanor
which the court would like to see during examination of a
particular witness, the Court should refuse such an order."
In Pushpa Devi Bangur case this Court held:-
"30. The issue of commission is a matter of judicial
discretion. The Court, before allowing a prayer for issuing of
commission to examine a witness, must consider whether
such witness was vital and important.
31. The word 'may' in Rr. 1 and 4 means that Court has
'discretion' to issue commission and not that it is 'duty-bound'
to issue it whenever asked for.
.........
34. The broad principles which must necessarily be kept
in mind that exercising discretion in the matter of issuing of
commission for the examination of a witness are that the
person invoking it must be bona fide in making the
application. The application of the defendant should not be
subject to the same amount of scrutiny as that of the plaintiff.
The reasons why the witness cannot be examined in Court
must be carefully considered. Regard must be had to the
conduct of the party and that it must be considered whether
the examination on commission would result in manifest
injustice to any party or is not calculated to permit the
evidence being tested fairly or is likely to prove an abuse of
process of Court. Justice above all is a paramount
consideration and the discretion must be exercised in
furtherance of the same in the particular facts and
circumstances of an individual case. The test for rejection of
the application should be that the application is not a bona
fide one.
.........
38. ... .. ... As held by the Hon'ble Supreme Court in the
case of Salem, Advocate Bar Association, Tamil Nadu v. Union
of India reported in AIR 2005 SC 3353 it has been held that
'will' of the Legislature which has by amending the Code
provided for recording evidence by the Commissioner for
saving Court's time taken for the said purpose, cannot be
defeated merely on the ground that the Court would be
deprived of watching the demeanor of the witnesses."
Undoubtedly, the above principles are to be applied in dealing with
the application at hand.
Mr. Dutt submitted that the witness was under cross-examination
before the onset of the pandemic caused by the Covid-19 virus, the
consequent lockdown declared from 24th March, 2020 and the resultant
restricted functioning of the Court. An application made by him for the
same purpose prior to this period, was withdrawn.
There were two grounds raised in the application for issuance of a
Commission. The first one was that the witness was a lawyer and ought
not to be called in Court to give evidence. We are not concerning
ourselves with that matter. The second point is more important. The
point is that because of the pandemic it would be more convenient for
examination of the witness on Commission.
In our opinion, this is a very valid point. During this unusual
period of time efforts should be made to ensure minimal yet sufficient
attendance in Court so that least inconvenience is caused to the health
of judges, lawyers, litigants, staff of the Court, witnesses and so on.
When the business of the court is curtailed and there is a huge
pendency and continuing accumulation of cases, there is a necessity of
finding a way for expeditious disposal of witness action through
examination of witnesses on Commission. This is in the interest of
justice. The order issuing the Commission, in these circumstances,
satisfies both the conditions of Order XXVI Rule 4A.
In our view, the discretion has been rightly exercised by the learned
judge.
We find ourselves unable to interfere with the judgment and order
dated 15th December 2020. We affirm the same.
We direct the Commissioner to allow a reasonable adjournment to
enable the parties to attend the Commission. The time to file the report
by the Commissioner is extended by eight weeks from date.
The appeal (APO 7 of 2021) and the connected application (GA 1 of
2021) are accordingly disposed of, after dispensing with all formalities.
All undertakings are discharged.
(I. P. MUKERJI, J.)
(MD. NIZAMUDDIN, J.)
R. Bose
