How to obtain testimony or deposition out of court before the commencement of the trial stage
Syed Jawad Quader
(Querist) 26 January 2011
This query is : Resolved
I have a case where my client, A, has sued B and C for declaration of title and cancellation of deed. The facts are that A suddenly found a forged deed purportedly executed by A in favour of B whereby A sells her land to B. B then sells her own land to C ALONG WITH the land that B purportedly purchased from A through the forged deed.
Now A and B are sisters and share a good relationship. B is neither involved nor aware of the forgery committed. The act of forgery was most probably committed by C, as he is the ultimate beneficiary. B is prepared to testify or depose that the forged deed is forged and fake and she never purchased the said land from A.
Now B is old, fragile and has severe health problems. She may not survive for much longer. On the other hand, her testimony or deposition is crucial to my client's case. I have just filed the case. I wish to take B's deposition immediately without any delay. Is this possible under the CPC or any other law? Like in the US or UK, does our CPC allow depositions under oath taken out-of-court in the presence of court officers?
Also, in a discussion about a similar case in this website, someone suggested that the plaintiff needs to pray for permanent injunction against the defendants. What kind of permanent injunction, if any, can I seek in this case? Can any permanent injunction be sought concerning revenue records? I ask the latter because C has somehow amended revenue records to show that he is the owner of the disputed land.
Any answers regarding this will be gratefully appreciated. Thanks!
Devajyoti Barman
(Expert) 26 January 2011
The deposition given in the court of law has the highest degree of evidenciary value. Since till that time the wiitness may not survive, it is advisable that you execute and register a deed of declaration which support your case.
Syed Jawad Quader
(Querist) 26 January 2011
Your idea is excellent. Although I didn't register it, I obtained a Notarized Affidavit from B affirming her testimony. That being said, I think an application under Order 18 Rule 16 of the CPC is ultimately the way to go forward in this matter. Do you agree?
niranjan
(Expert) 26 January 2011
Since B is the Deft.in A case, she can file such written statement duly notarised but through another advocate.
M V Gupta
(Expert) 28 January 2011
I agree that an application under O 18 R16 may be filed for immediate recording the evidence of B in view of her extremely old age and fragile health. The notarised affidavit of evidence would not help unless the deponent is awailable for x examn.
Syed Jawad Quader
(Querist) 28 January 2011
Thank you so much to everyone who has participated thus far. You have all been of help.
In my application under Or. 18 R. 16, am I absolutely required to show medical certificates confirming her poor health? I ask this because it is highly unlikely that I will be able to get my hands on one.
Also, noone has till now answered my question on whether I should include a prayer for permanent injunction in the main plaint. If yes, what will the permanent injunction be or be against? Please help.
