• Property issue

Hi
 I am US citizen (but an Indian). i have a dispute going on with my brother for a property. I am thinking of doing some sort of a legal step. but I am told that I might have to come to India for cross-examination. Which is a big problem for me

Can someone advise if video chat is ok for cross examination? any guidance
Thanks
Ramesh
Asked 4 years ago in Property Law
Religion: Hindu

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27 Answers

You can execute POA in favour of family member for filing case against your brother 

 

2) your personal presence would be necessary during trial 

 

3) you can make application to court that your cross examination be done through video conferencing 

 

4) 


Sujay Mitra vs State of West Bengal CRR No.1285 of 2015

Calcutta High court gave some guidelines which a trial court must keep in mind while recording evidence through video conferencing:

  1. The court must satisfy itself regarding the identity of the witness.
  2. The oath must be administered to witness before recording his evidence.
  3. The witness can only be examined during the working hours of Indian courts.
  4. Copies of the documents to be proved must be provided to witnesses well in advance.
  5. It must be ensured by the court that the witness is alone in the room of Indian embassy from where he is giving evidence through video conferencing.
  6. The demeanor of the witness must be recorded by the court which is relevant for the purpose of evaluation of the evidence.
  7. Once the recording of the evidence is started through video conferencing, it must be continued on day by day basis till evidence of such witness is recorded completely.
  8. Other conditions can be imposed by the court to ensure smooth recording of evidence through VC.

Ajay Sethi
Advocate, Mumbai
94522 Answers
7485 Consultations

5.0 on 5.0

Well, video link may be allowed but it is the court's discretion. You can sign a power of attorney and that person may represent you in the civil proceedings.

Rahul Mishra
Advocate, Lucknow
14083 Answers
65 Consultations

5.0 on 5.0

Your lawyer cannot be cross examined as he has no personal knowledge of facts of the case 

 

you need to be cross examined to prove your case 

Ajay Sethi
Advocate, Mumbai
94522 Answers
7485 Consultations

5.0 on 5.0

1. Property dispute will have to be file in the Civil Court, wherein your presence can be dispensed away PROVIDED some Legal Representative or a Power of Attorney Holder, represents you in Court for all purposes.

CONSIDER THIS:

1. ONLY a proper Stamp Duty paid (500/-) and Registered POA holder is entitled to execute any immovable property transaction before the local registrar of sub-assurances. IF the POA is not registered, THEN the whole proceedings shall remain illegal. POA can be given to "ANYBODY", irrespective of relationships. Stamp Duty on POA is not the same as Stamp Duty paid on Sale /Purchase Deed.

2. POA may have strategic clauses and time limitations of the deal (payment terms, validity time period of the POA document ....), for safety of the POA giver.

3. POA can be registered "ANYWHERE" in India, before the local registrar of sub-assurances and shall be valid throughout India. Stamp Duty on POA is not the same as Stamp Duty paid on Sale /Purchase Deed. A Notarized POA is legally infructuous for immovable properties.

4. POA document can be endorsed abroad by the local consulate office and SUBSEQUENTLY stamp duty paid and registered in India, for it to be legally enforceable.

5.  IF person CANNOT go to Registrar office to register POA, THEN Registrar's officer can be requisitioned to visit home, to register POA, on payment of due fees by following due procedure of law.

Hemant Agarwal
Advocate, Mumbai
5612 Answers
25 Consultations

5.0 on 5.0

Hello,

Ask your lawyer to file an application for the same the court generally don't grant such permission  but yes you can try.

Regards

Swarupananda Neogi
Advocate, Kolkata
2963 Answers
6 Consultations

4.7 on 5.0

1. You can draft & execute a POA in favor of a family member or anyone else for filing the case against your brother, 

2. your personal appearance is not necessary 

3. you can make an application to the trial court that your cross-examination be done through video conferencing, however, it's a matter of discretion but you have some judgments in your favor,

 

Suneel Moudgil
Advocate, Panipat
2380 Answers
6 Consultations

4.8 on 5.0

1. Well  for filing of the suit snd fir its day to day hearing you can do so by giving a POA to someone related to you.

2. However for your evidence your personal presence is sine qua non. Though there's provision for recording evidence through video conferencing that is discretionary power of court and mostly allowed in such cases where party due to old age or medical ailments can not endure long distance travel. 

3. So don't bank upon video conferencing alone. 

Devajyoti Barman
Advocate, Kolkata
22779 Answers
484 Consultations

5.0 on 5.0

1. See if there are enough documentary evidence then in that case you don't have to fils affidavit if examination in chief as witness so no cross examination will be needed.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

Yes you can appoint power of attorney and Vakaltnama to your lawyer.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

Yes for cross examination you have to come to India and be present before court.

Yo can issue Power of Attorney in the name of one of your family members to file the case.

Yes, there is chance for video conference for cross examination, for which, you need to make an application.

No you cannot give authority to your lawyer to give evidence,firstly he cannot give evidence since he will not know the true facts / figures of the case on hand, he is only your representative to conduce the case in court. 

Yes, certain guidelines have been laid for cross examination of witness through video conference viz., administering of oath, identity of witness and the same shall be with prior appointment during office hours of the court.

 

S Srinivasa Prasad
Advocate, Hyderabad
2876 Answers
9 Consultations

5.0 on 5.0

A person can be made to stand on the basis of a power of attorney. Evidence may be submitted by him too.

Rahul Mishra
Advocate, Lucknow
14083 Answers
65 Consultations

5.0 on 5.0

Dear Sir,

The cross examination is the phase of the case where the litigant has to personally appear before the court and answer the questions raised by opposite party lawyer. This can be done with the help of local commissioner (LC) wherein the court allows the LC to visit the place of the witness along with the advocates and records the statement of witness. However, this is done rarely and in the cases where witness can't come to court due to sickness, old age etc. You may discuss with your advocate to use this tactics, if possible. It is intimated that in this case, the expenses of LCs are borne by the parties and the expenses are decided by the court. I feel this step may be costly but you may discuss with your advocate. Alternatively, you may come for a short leave and before coming take the priors orders from the court to for quick and timebound cross examination on day to day basis. You may discuss this aspect also with your advocate and decide the best course of action and proceed accordingly.  

Ganesh Singh
Advocate, New Delhi
6757 Answers
16 Consultations

4.5 on 5.0

Better give POA to any of your absolute trustworthy whether friend or relative to file civil suit on your behalf.

Advocate cannot be cross examin on your behalf.

Yogendra Singh Rajawat
Advocate, Jaipur
22596 Answers
31 Consultations

4.4 on 5.0

Hi

You can request the cross examination via Video Conferencing. 

This facility is available under certain circumstances. 

Thanks 

Rahul Jatain
Advocate, Rohtak
5365 Answers
4 Consultations

4.8 on 5.0

Yes, you give special POA signed in front of Indian Embassy for legal work to be performed on your behalf. And video conferencing is accepted in the Indian court just court needs to accept it and should have facility at that time. 

Ganesh Kadam
Advocate, Pune
12910 Answers
253 Consultations

4.9 on 5.0

An application for cross examination can be  made at the appropriate stage of case and once the application is allowed, we can go ahead to cross examine through video conferencing.   The Hon'ble Supreme Court in one of the case has made its observations as follows and decided the application in favour of the applicant. 

"Video conferencing has nothing to do with virtual reality. Advances in science and technology have now, so to say, shrunk the world. They now enable one to see and hear events, taking place far away, as they are actually taking place. To take an example today one does not need to go to South Africa to watch World Cup matches. One can watch the game, live as it is going on, on one's TV. If a person is sitting in the stadium and watching the match, the match is being played in his sight/presence and he/she is in the presence of the players. When a person is sitting in his drawing-room and watching the match on TV, it cannot be said that he is in presence of the players but at the same time, in a broad sense, it can be said that the match is being played in his presence. Both, the persons sitting in the stadium and the person in the drawing-room, are watching what is actually happening as it is happening. This is not virtual reality, it is actual reality. One is actually seeing and hearing what is happening. Video conferencing is an advancement in science and technology which permits one to see, hear and talk with someone far away, with the same facility and ease as if he is present before you i.e. in your presence. In fact he/she is present before you on a screen.

Dalip Singh
Advocate, New Delhi
1083 Answers
36 Consultations

5.0 on 5.0

If the court in which this court is going is having video conferencing facilities and your power of attorney holder files an application for this arrangement, the court may allow the examination and cross examination through such facilities.

You can talk to your advocate about this and the feasibility . and proceed on his advice.

 

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

Your lawyer can conduct the case and may represent you during yor absence before court.

He cannot depose evidence or he can be subjected to cross examination in your place.

Since the development of technology, there are felicities in many courts in Mumbai for video conferencing evidence deposition, so you may consult your advocate on it and proceed accordingly. 

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

Yes this is a property issue then you have to visit the court at the time of cross examinations cannot be done on video so your physical presence will be needed in the court

Vimlesh Prasad Mishra
Advocate, Lucknow
6852 Answers
23 Consultations

4.9 on 5.0

In State of Maharashtra vs Praful B Desai (Dr.)

Supreme court permitted recording of evidence of witnesses staying abroad through video conferencing.

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

Please check with your lawyer on how to get the power of attorney registered. It is relatively easy. 

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

You can request for VC facility if granted then you can depose from US. tell your lawyer to apply for the same

Prashant Nayak
Advocate, Mumbai
31807 Answers
176 Consultations

4.1 on 5.0

you can definitely depose for your cross examination via video conferencing 

your personal presence will not be needed

the court will appoint a commissioner who will record the evidence

your lawyer can seek liberty of court for your cross examination by video conference

Yusuf Rampurawala
Advocate, Mumbai
7485 Answers
79 Consultations

5.0 on 5.0

1. No video conferencing will not help you in trail court.

2. You have to appear personaly for giving evidence in court. 

3. You can request court that opposite advocate should complete the cross examination in one or two hearings So that you can travel back to US.

Mohit Kapoor
Advocate, Rohtak
10687 Answers
7 Consultations

5.0 on 5.0

1.Video conference is allowed in most of the Courts for which you shall have to file an application to get leave for the said cross examination through video conference.

 

2. You can inform the Court your difficulties in coming to India frequently and in that case the Court might make arrangements to ensure that all your examinations and cross examination is done within a very short period of time.

Krishna Kishore Ganguly
Advocate, Kolkata
27191 Answers
726 Consultations

5.0 on 5.0

1. If the Court dos not grant leave for cross examination through video conference, then you shall have to appear physically before the Court.

 

2. However, the Court can ensure fast completion of the cross examination as explained in my earlier post.

Krishna Kishore Ganguly
Advocate, Kolkata
27191 Answers
726 Consultations

5.0 on 5.0

  1. As per the information mentioned in the above query, makes it clear that you wish to contest the case, but at the same time you may not be able to put yourself available all the time for cross examination.
  2. I would like to apprise you that when you contest the case then it is the right of the other party to cross examine you and the same is guaranteed by law which cannot be put on hold for any reason.
  3. Though any side can waive iff their right to do so, but cannot deny the same on them by the other party.
  4. There can be a case wherein you can take the dates according to your convenience, but surely this can't be done by your advocate as he can only assist on law to you, but the cross examination is of the party concerned.

Sanjay Baniwal
Advocate, South Delhi
5473 Answers
13 Consultations

5.0 on 5.0

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