Smt. Ritu Singh vs Smt. Premlata Singh
2021 Latest Caselaw 4426 UK

        IN THE HIGH COURT OF UTTARAKHAND
                    AT NAINITAL

                      Writ Petition No. 335 (MS) of 2019

Smt. Ritu Singh.                                         .................Petitioner.

                                           -Versus-
Smt. Premlata Singh
and others.                                              .........Respondents.

Present:
Shri Dharmendra Barthwal, Advocate for the petitioner.
Shri Pankaj Kumar, Advocate for the respondents.


Sri S.K.Mishra, J.

Date of Hearing and Judgment: 08.11.2021

1. Heard Shri Dharmendra Barthwal, learned counsel for the petitioner and Shri Pankaj Kumar, learned counsel for the respondents.

2. In this writ petition, the petitioner has prayed to issue a writ of Certiorari quashing the impugned order dated 11.01.2019 (Annexure No. 9 to the writ petition) passed by 5th Additional District Judge in Original Suit No. 7 of 2012 and further to direct the court below to permit re-examination of petitioner on whatsapp, as per earlier orders dated 16.11.2018 and 28.11.2018.

3. Learned counsel for the petitioner submits that petitioner is residing in USA and her son is suffering from congenital ailment. Earlier, petitioner had filed an application for re-examination on whatspp before the trial court, which was allowed by the trial court vide order dated 28.11.2018. On 15.12.2018, the learned trial court directed the petitioner to file the detail of questions on which re-examination is to be done. She moved an application indicating therein that original diary written by her deceased brother is available with the court and she is able to identify the

hand writing and signature of his brother and on the basis of handwriting on the diary, she will prove the handwriting of the testator on the will.

4. However, the trial court, on consideration, vide order dated 11.01.2019, recalled its previous orders dated 16.11.2018 and 28.11.2018 and ordered that personal appearance of the petitioner is required to prove the document, therefore, permission for re- examination through electronic mode was rejected.

5. Learned counsel for the petitioner relied upon a reported judgment in the case of Amitabh Bagchi Vs. Ena Bagchi reported in AIR 2005 Calcutta 11 wherein the High Court has held that mechanical process includes electronic process and there is no bar on examination of witness by way of video conferencing which is essential part of electronic method. It is further held that recording of evidence by way of video conferencing cannot be therefore, ignored as unnecessary. However, certain safeguards are to be taken for recording the evidence through video conference.

6. Moreover, it is common knowledge that because of the pandemic, the Courts have been functioning through virtual mode and in fact, many High Courts have brought different Rules for recording the evidence particularly through video conferencing mode. The High Court of Uttarakhand has also framed the High Court of Uttarakhand Video Conferencing Rules, 2020. As far as subordinate courts are concerned, the State Government has not framed any specific Video Conferencing Rules but in absence of any such Rules, this Court cannot restrain itself from doing justice by directing the trial court to record the evidence through video conferencing mode. Moreover, in this case, the petitioner is residing in USA and her son is suffering

from congenital health issues, for which she cannot travel to Uttarakhand

7. In view of the peculiar facts of the case, this Court is of the opinion that petitioner's evidence should be recorded through video conferencing mode either by using apps like google meet or zoom meet, cost of which shall be borne by the petitioner herself.

8. With the above observations, the writ petition is allowed. The impugned order dated 11.01.2019 is set aside. It is directed that evidence of the petitioner shall be recorded, as per direction given above. Parties are directed to appear before 5th Additional District Judge, Dehradun through their counsel on 06.12.2021. On that date, the trial court shall fix the date for recording of evidence of the petitioner in virtual mode. While recording the evidence of the petitioner through virtual mode, who is living in USA, the trial court shall take proper protection for identification of the petitioner (like it can inspect of passport and visa, certification of petitioner through independent persons known to her and have acquaintance with her, at the time of hearing of the evidence). Moreover, if the trial court desires, it can keep scanned copy of the passport and visa on its record. As far as signature of the petitioner on the recorded statement is concerned, the trial court on completion of the re-examination, shall take endorsement of the petitioner's counsel and then, pass appropriate orders. No order as to costs.

9. Urgent copy of this judgment be provided to the counsel for the parties, as per Rules. No order as to costs.

(S.K.Mishra) Judge SKS