Case Note & Summary
The plaintiff, Liverpool & London Steamship Protection & Indemnity Association Ltd., filed a suit (Adm. Suit No. 32 of 2000) against m.v. 'Sea Success I' and another. The plaintiff took out a Notice of Motion (No. 1141 of 2005) seeking appointment of a Commissioner to record evidence and specifically to record the evidence of Ms. Lynn Cook, a witness residing in Liverpool, United Kingdom, via video conferencing. The affidavit in support stated that the witness was unable to travel to India due to her responsibility of caring for two minor children. The motion was filed under Order 26 Rule 5 of the Code of Civil Procedure, 1908. The defendant opposed the motion, arguing that the court should not exercise its discretionary jurisdiction under Order 26 Rule 5 to appoint a Commissioner, and in any event, evidence should not be recorded by video conferencing because the demeanour of the witness is essential for the court to observe. The defendant relied on two judgments: I.C. Corporation v. Daewoo Corporation, AIR 1990 Bombay 152, and Ramesh Siram Sane v. Bhagwandas Atmasingh, AIR 1972 AP 216. The plaintiff relied on a judgment of the Supreme Court in State of Maharashtra v. Dr. Praful B. Desai (2003) 4 SCC 601, which held that video conferencing is an acceptable method for recording evidence and that the demeanour of a witness can be observed via video conferencing. The court, after hearing both sides, allowed the motion, permitting the recording of evidence of Ms. Lynn Cook via video conferencing, and appointed a Commissioner for that purpose.
Headnote
A) Civil Procedure - Recording of Evidence - Video Conferencing - Order 26 Rule 5, Code of Civil Procedure, 1908 - The court considered whether evidence of a witness residing in Liverpool, UK, could be recorded via video conferencing. The defendant opposed, arguing that demeanour of the witness is essential and cannot be observed via video conferencing. The court held that video conferencing is permissible and the demeanour can be observed, allowing the application. (Paras 1-2)
Issue of Consideration
Whether the court can appoint a Commissioner to record evidence of a witness residing abroad via video conferencing under Order 26 Rule 5 of the Code of Civil Procedure, 1908.
Final Decision
The court allowed the Notice of Motion, permitting the recording of evidence of Ms. Lynn Cook via video conferencing, and appointed a Commissioner for that purpose.
Law Points
- Video conferencing is permissible for recording evidence of a witness residing abroad
- Order 26 Rule 5 CPC
- discretion of court
- demeanour of witness can be observed via video conferencing
