The main legal point established in the judgment is the court's recognition and acceptance of the use of video conferencing for recording evidence, based on the advancement of technology and the broadened interpretation of legal provisions related to 'attendance' and 'recording of evidence'.

JUDGMENT :

1. This is an application filed by the plaintiff for appointment of a fit and proper person as commissioner for recording the evidence of plaintiff via video conferencing from India.

2. The suit is for dissolution of a partnership business carried on by the plaintiff and the defendant no. 2 under the name of M/s. Kaluram Sarda & Grandsons, the defendant no. 1. The plaintiff is a 72 year old gentleman and resides in Mansfield, Notts, United Kingdom.

3. Mr. Suman Dutt, learned counsel appearing for the plaintiff submits that apart from being an elderly person, the plaintiff is mostly wheelchair-bound with restricted mobility. The apprehension expressed by counsel is that the assets of the partnership firm are being dealt with by the defendant no. 2, taking advantage of the fact of the plaintiff living outside the country. Counsel relies on two medical certificates dated 3rd December, 2018 and 27th April, 2017 issued by a doctor at St Peter’s Medical Practice, Mansfield and Sherwood Forest Hospitals respectively. The aforesaid certificates record that the plaintiff has an unsteady gait and requires a walking frame for short distances and a wheelchair for travelling long distances. It further records that the plaintiff had a pacemaker inserted on 21st December, 2015 and has a complex heart block. It is submitted that this is a fit case for issue of a commission for recording the evidence of the plaintiff having regard to the physical condition of the plaintiff.

4. Counsel appearing for the defendants submits that the plaintiff is not completely immobile and that the medical reports may have been influenced. He however does not object to the commission being recorded by way of video conferencing.

5. Having seen the medical certificates relied upon by Mr. Dutt it is clear that the plaintiff may not be in a position to travel to India and to this court for giving evidence and hence there is no reason to refuse appointment of a Commissioner for recording the evidence of the plaintiff. The prayer made for video conferencing facilities is a fair option given by the plaintiff since that would save substantial costs of the Commissioner and others travelling to the UK for recording such evidence. Counsel relies on Badyanath Halder v. Medical Council of India reported in 2012 SCC Online Cal 8082, where this court was of the view that conducting a case through video conferencing has become an accepted procedure in recent times and is also commonly used in this court for cases originating from the Andaman & Nicobar Islands. In the said decision the word ‘mechanically’ in Order XVIII Rule 4 of The Code of Civil Procedure, 1908 was construed to mean that evidence can be recorded even with the help of electronic media, audio or audio-visual. The learned single Judge relied on Salem Advocate Bar Association TN v. Union of India reported in (2003) 1 SCC 49 for giving the aforesaid construction. The point essentially was that under Order XVIII Rule 4, recording of evidence in the presence of the Judge or the Commissioner, has been broadened to take the benefit of advancement of technology. Counsel also relies on Twentieth Century Fox Film Corporation and Anr. v. NRI Film Production Associates (p) Ltd. reported in AIR 2003 Karnataka 148 on the proposition that “attendance” as stated under Order XVIII Rule 4(2) does not mean that the person has to be physically present before the court or the Commissioner. In that case it was held that mere non-physical attendance by itself will not stand in the way of a witness being examined by audio-video link.

6. For the procedure to be laid down for recording of evidence of the plaintiff via video conferencing, Counsel relies on Amitabh Bagchi v. Ena Bagch reported in AIR 2005 Calcutta 11. In this decision, a learned single Judge of this court emphatically held that courts should permit development of technology to aid court proceedings since that would be a productive tool in appropriate cases. A detailed