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2015 DIGILAW 189 (CAL)

Ashrant Bhartia v. Jagmohan Kerjriwal

2015-03-02

JOYMALYA BAGCHI, MANJULA CHELLUR

body2015
JUDGMENT : 1. Heard learned Advocates for the appellants as well as the respondents. 2. This appeal is directed against a judgment dated 16th December, 2014 in GA No.3059 of 2014 passed by the learned Single Judge. It is necessary to narrate the admitted facts in order to appreciate merits in the present appeal. The respondents/plaintiffs before us has filed a suit to obtain probate of last Will and Testament of Smt. Sajani Devi Bhartia. Apparently, the said suit is contested. The two attesting witnesses for this Will are one Mr. Ajay Bhargava, Partner of Khaitan & Co., Advocates and another person by the name of Mr. Sharad Vaid, Partner of Khaitan & Co., Advocates, both practicing and residing at New Delhi. The testatrix is wife of Mohan Lal Bhartia. It is also not in dispute that Will of her husband and Sajani Devi Bhartia was executed on the same day dated 8th March, 2007. According to the plaintiff, this Will in question is the last Will and Testament of deceased Smt. Sajani Devi Bhartia. Admittedly, so far as probate of the Will of her husband was taken on 10th September, 2009 and the same was uncontested. 3. The appellants/defendants have seriously contested the suit for probate. The issue which arises for our consideration is with regard to examination of these attesting witnesses to the Will on Commission. The relevant paragraphs indicating the reasons for their examination on Commission are at paragraphs 23, 24 and 25. The appellants/defendants opposed this application mainly on the ground that unless the examination of witness is face to face, truthfulness of the evidence of the witness will not be able to be ascertained, as it is relatable to demeanor of the witness. Placing reliance on AIR 1924 Cal 971 (Panchkari Mitra v. Panchanan Saha & Ors.) this issue was raised. According to appellants/defendants, the reason that the attesting witnesses are lawyers practicing at New Delhi cannot be a genuine and proper ground to have them examined on Commission. It was also contended on behalf of the appellants that when witnesses are confronted with documents in the witness box if they are examined in Court, the composure of such witnesses is entirely different compared to their examination outside the Court on Commission. It was also contended on behalf of the appellants that when witnesses are confronted with documents in the witness box if they are examined in Court, the composure of such witnesses is entirely different compared to their examination outside the Court on Commission. Learned Senior Counsel for the appellants also contended that it is right of a party to have the evidence recorded in Court and, therefore, there cannot be examination of a witness on Commission on the ground that the witness is a busy and preoccupied professional. Learned Judge after referring to amendments brought to procedure of examination-in-chief by way of affidavit etc. (though not applicable to the present trial) was of the opinion that the proposition of recording evidence in Court has to be examined liberally and, therefore, the importance of physical presence of witness in Court while recording of their evidence has been diluted even in cases where demeanor of the witness is crucial or relevant. Subsequently after referring several decisions of the Apex Court, learned Judge opined that the convenience of the parties is relevant when witnesses have to be examined who are residing outside the jurisdiction of the Court to avoid delay. According to learned Judge, in extremely rare cases where the Court does not have the confidence in the ability of the Commissioner to note or video record demeanor of the witness or where even video-recording of the evidence cannot bring out the demeanor which the Court would like to see during the examination of a particular witness, the Court should refuse examination on Commission. Ultimately, learned Judge opined that the two attesting witnesses are lawyers in a reputed firm of solicitors in New Delhi and since they are bound to be heavily preoccupied coupled with the fact that at the time of passing this order it was impossible for the Court to allocate a fixed time period for examination of the two attesting witnesses due to work pressure on the Court, it would be just and proper to allow the application. So far as the financial implications and/or burden, the Court also made appropriate direction that it should be borne by the plaintiff. So far as the financial implications and/or burden, the Court also made appropriate direction that it should be borne by the plaintiff. Several directions were given which reads as under to safeguard the interest of both the parties:- (a) A commission do issue to examine the two attesting witnesses of the alleged last Will and Testament of Sajani Devi Bhartia made on 8th March, 2007, namely, (i) Ajay Bhargava, partner, Khaitan & Co., Advocates, 1105 Ashoka Estate, 24 Barakhamba Road, New Delhi - 110 001. (ii) Sharad Vaid, Partner, Khaitan & Co., Advocates, 1105 Ashoka Estate, 24 Barakhamba Road, New Delhi - 110 001. (b) The Commission will be held in New Delhi on court holidays common to the Supreme Court of India, Delhi High Court and Calcutta High Court at a venue to be fixed by the Commissioner, not being the working place of the attesting witnesses. (c) The entire proceedings are to be video recorded by a professional cameraman, so that the examiner putting the question, the witness giving the answer and the Commissioner are clearly seen. A transcript of the evidence is also to be taken. (d) Mr. Rudrajit Nath Ray, a Delhi based advocate is appointed as the Commissioner. He shall be paid remuneration at the rate of Rs. 15,000/- per sitting of not more than two hours duration. If a sitting exceeds the said duration he shall be paid remuneration at the rate of Rs.15,000/- for every additional two hours or part thereof. The Commissioner will be entitled to appoint and fix the remuneration of his staff. (e) The Commissioner shall not have the right to disallow any question or any document. If any objection is raised with regard to asking of a question, he shall record such objection but allow the answer to be given. Similarly, he shall allow documents objected to, to be shown to the witness and tendered, noting the objections. He will also record his observations, if any. (f) The Commissioner will file his report by 31st March, 2015 or such extended time, as this court may allow. (g) The Registrar of this Court will depute an official or officials to have custody all the records of this case and take them to the venue of the commission and bring them back to this court. (f) The Commissioner will file his report by 31st March, 2015 or such extended time, as this court may allow. (g) The Registrar of this Court will depute an official or officials to have custody all the records of this case and take them to the venue of the commission and bring them back to this court. (h) The report of the Commissioner may be filed with the said officer of this court immediately after the last sitting of the commission. The officer of this court will receive the report in a sealed cover and bring it back to this court along with the other records. The Commissioner will only notify the parties by letter that the report has been filed. (i) The fees of the Commissioner, his staff, the rental charges of the venue, the infrastructural costs for this exercise the travelling costs; expenses including hotel and travelling expenses and fees of this courts officers who will be the custodian of the records, as determined by the Registrar, Original Side of this Court shall be borne by the plaintiffs. (j) The Plaintiffs shall also bear the following extra cost that may be incurred by the caveator's to cross-examine the plaintiffs witnesses. The plaintiffs will have to pay for the air fare of two counsel, one senior and one junior and the Advocate-on-record for the caveator's, from Kolkata to New Delhi and back, bear their hotel expenses in New Delhi travelling costs and so on, commensurate with their status. 4. Aggrieved by the same the present appeal is filed. 5. Learned Senior Advocate, Mr. Surojit Nath Mitra, placed reliance on 1924 SCC Cal 191 to contend that the demeanor of the witness should be seen and his precise answers to the questions put to him should be heard by the Judge who has to decide the case. Therefore, examination on Commission of any person residing beyond the local limit of its jurisdiction, the Court must use its discretion to grant or refuse a Commission judiciously and judicially. According to the learned Advocate, specially in the case where the suit is filed for probate of a Will, the demeanor of attesting witnesses and their examination in Court would be very important for considering the genuineness of the Will, especially when the challenge to the Will is one of forgery. 6. According to the learned Advocate, specially in the case where the suit is filed for probate of a Will, the demeanor of attesting witnesses and their examination in Court would be very important for considering the genuineness of the Will, especially when the challenge to the Will is one of forgery. 6. He also placed reliance in the case of Orugunati Ranganayakamma v. Maduri Lakshminarasamma & Anr., reported in AIR 1979 AP 8 , paras 3 and 4. In that case, the witness who had to be examined was a private doctor residing at a distance of 40 kms. outside the territorial limits of Chirala District Munsif Court. The subject matter of the controversy before the High Court was whether the discretion in appointing the Commission to record evidence was properly exercised by the court below or not. In that context, referring to another judgement of the Andhra Pradesh High Court reported in AIR 1960 AP 459 , Their Lordships opined that there was no right to have a commission issued to examine witnesses on the mere ground they were residing outside the jurisdiction since the issue of a commission is a matter of discretion of the Court. The said discretion has to be exercised judiciously depending upon the facts and circumstances of each case. Since the examination of an at testator of a Will in the case of probate of Will is most material, it is argued that the Court shall be handicapped in failing to examine the demeanor such a witness if he is examined on commission. 7. As against this, Mr. Dhruba Ghosh, learned Counsel arguing for the respondent/plaintiff, submits that the two decisions referred to by the learned Senior Counsel for the appellants were of 1924 and 1979 and with the advent of technology the position is altogether different. Therefore, the Trial Judge exercised his discretion taking into consideration the advantage of technology and has applied his mind properly to the facts of the present case by taking into consideration the factual situation especially by protecting the interest of both the parties from all angles. Therefore, the Trial Judge exercised his discretion taking into consideration the advantage of technology and has applied his mind properly to the facts of the present case by taking into consideration the factual situation especially by protecting the interest of both the parties from all angles. He also impressed upon us the reason for such direction of examination of the witness on commission was not on account of pre-occupation of the two professionals who are attestetors to the Will in question but Courts inconvenience and the paucity of time to record evidence in a case of this nature where long hours of examination may be required to probabilise the challenge to the Will that it is a forged document. He places reliance on AIR 1962 AP 435 , which was referred to in AIR 1979 AP 8 . He also refers to para 119 of AIR 1981 SC 1786 . He places reliance on AIR 1981 SC 1786 to contend that whenever courts exercise discretion in passing routine orders in the course of the suit, they are bound to cause some inconvenience, to some extent prejudice to one party or the other party but the same cannot be treated as exercising of judicial discretion improperly because the appellate courts must give sufficient allowance to the trial Judge and proceed on a presumption that any discretionary order which he passes must be presumed to be correct unless it is ex facie legally erroneous or causes grave and substantial injustice. By placing reliance on these decisions, the learned Counsel arguing for the respondents further submits that time-frame may be fixed within which the evidence on Commission is to be completed and the plaintiff is ready to take all necessary steps to see the evidence is completed as expeditiously as possible so as to have expeditious disposal of the suit itself. He further contends that the present exercise on the part of the plaintiff was only with the intention to see that the suit is disposed of as expeditiously as possible. 8. He further contends that the present exercise on the part of the plaintiff was only with the intention to see that the suit is disposed of as expeditiously as possible. 8. Learned Counsel arguing for the appellant also refers to this judgment of 1981 so far as para 115, in order to contend that every interlocutory order cannot be regarded as a judgment but those orders which decide matters of moment or affect vital and valuable rights of the parties and which cause serious injustice to the parties have to be considered as judgments. Therefore, orders passed by a trial Judge deciding the question of admissibility or relevancy of a document cannot be treated as judgments as grievance on this score can be subsequently corrected by a higher court. 9. In the present case the impugned order is a detailed order considering every point that was argued and ultimately the Learned Judge passed the order, as stated above. On perusal of the application we note that it is not exactly the inconvenience of the witnesses, as they are busy Advocates, examination on commission was prayed for but such relief was asked on account of busy schedule of the court being pre-occupied with several other matters. 10. Similarly, the Learned Judge did not base his opinion giving importance to the inconvenience of the witnesses but while opining that the court simply does not have ample time at its disposal held such paucity of time may cause inconvenience to the attesting witnesses, who are lawyers in Delhi, and proceeded to pass the impugned order. In other words, the emphasis was not with regard to the pre-occupation of the attesting witnesses in their profession but with regard to the paucity of time of the court. Even otherwise, in a suit where the Will is sought to be probated and the challenge is serious, that is, forgery, it takes lot of time for recording of evidence, especially when it comes to the evidence of the attesting witnesses. Even otherwise the two decisions relied upon by the appellants were passed at a time when the courts did not have the benefit of technology. Even otherwise the two decisions relied upon by the appellants were passed at a time when the courts did not have the benefit of technology. If witnesses are examined on commission which is being recorded by video, we are of the opinion the demeanor of the witness may very much be examined by the Court at the time of taking into consideration their evidence while deciding the suit on merits. Apart from that, by virtue of the Order 18, Rule 17 the court can at any time recall the witness and examine the witness in order to do justice to the parties. 11. In that view of the matter, we are of the opinion the Learned Judge has taken care of every aspect of the matter and has exercised his discretion not only judicially but judiciously. Hence, the appeal is dismissed. 12. In addition to the safeguards provided by the Learned Judge we further direct the plaintiff is to complete the examination of the witnesses on Commission within two months from the date of fixing the time for examination taking into account the convenience of the parties and their Counsels. Appeal dismissed.