The court ruled that a petitioner facing threats and health issues must be allowed to record evidence via video conferencing, ensuring fair trial rights.

ORDER :

Mr. Arun Monga, J. - Vide this common order, above two cases are being disposed of, wherein, the impugned orders of similar nature are under challenge. Since facts are analogous and issues raised therein are common, for brevity, recitals are taken from S.B. Civil Writ Petition No. 9088/2023.

2. The petitioner has assailed two orders, both dated 31.05.2023 (Annexure. 7) passed by learned Additional District Judge No. 2, Nimbahera, whereby, two applications in two separate suits filed by petitioner-defendant under Order 26, Rule 4 (1)(A) read with section 151 CPC and Order 16, Rule 19 CPC have been dismissed.

3. Succinctly stated the facts of the case are:

3.1 The respondent herein filed a suit for recovery of money before the learned trial Court. The petitioner appeared upon service of summons and filed written statement denying the averments made in the plaint.

3.2 It is averred in the petition herein that the respondent is a politically influential person. That apart, there is an apparent threat to the life of the petitioner if the petitioner travels to Nimbahera. Therefore, the petitioner sought indulgence of the court seeking adequate security for his travel to Nimbahera. The court directed the Superintendent Police to provide armed police officials available for his travel from Indore to Nimbahera.

3.3 The matter was listed on 07.02.2023 for the purpose of recording the evidence of the petitioner's witnesses and on an application for taking certain documents on record. However, the trial court, closed the evidence of the petitioner.

3.4 Thereafter, the petitioner filed an application under Order 26, Rule 4 (1)(a) read with section 151 CPC and Order 16, Rule 19 CPC for recording the evidence of the petitioner either through a Commission or through video conferencing, citing his old age, medical ailments, and the fact that he resides 300 kilometers away from Nimbahera.

3.5 Learned trial Court, vide order dated 31.05.2023 (Annexure. 7), dismissed the application of the petitioner.

4. Learned counsel for the petitioner argues that the learned trial court has wrongly rejected the applications of the petitioner seeking the appointment of a Commission for recording the evidence of the petitioner or by way of video conferencing. He contends that the court below itself had found that there is threat to the life of petitioner, and it would have been prudent for the Court below to record the testimony of the petitioner through a Commission. He further argues that the petitioner is suffering from various medical ailments, and his health does not allow him to travel all the way from Indore to Nimbahera. He, therefore, prays for setting aside the impugned order.

5. Given the nature of order being passed, there is no necessity to issue notice to respondent, as no serious prejudice would be caused. Notice to respondent is thus dispensed with.

6. Having perused the record and after hearing the arguments of learned counsel for the petitioner-defendant, I am of the view that a serious prejudice would be caused in the absence of testimony of petitioner. Since his evidence has been closed without granting an opportunity for his cross-examination, naturally, his chief examination would not be read in evidence, rendering him remedy-less and unable to rely on the same in support of his defense.

7. It transpires that on the assigned date of the hearing before the learned trial court, applications were specifically filed by the petitioner seeking permission from the court to allow cross-examination either through a Commission or through video conferencing. The reason stated therein is that petitioner is a resident of Indore, Madhya Pradesh, which is 300 kilometres away, and owing to certain peculiar circumstances, he fears threat to his life from certain elements of society. In this background, approached the Court for providing him police protection, and an order dated August 18, 2022 (Annexure 3), was also passed.

8. If the threat perception of the pe