IN THE HIGH COURT OF JUDIcATURE AT BILAsPUR WRIT PETITION (Al—+227) No. 56% OF 2009 (. Muralidhar Bazari, son of La’re Kanhaiyalal Bazar‘i, aged abou’r 8O years, PETITIONER (Plain‘riff) residenT of Ne’raji Bagicha Gudhiyari, Raipur (CG) Vs RESPONDENTS : 1. (Defendan’rs) Iqbal Singh Bha‘ria, son of Tolob, Raipur‘ (CG) . Surjif Singh BhaTia, son of Lm‘e Sardar‘ Keshar Singh 48 year's, 3/231 BhaTia, aged residen’r of Raja Talab, Raipur‘ (CG) (Original defendan‘r Kesar‘ Singh and responden‘r No.1I& 2 legal heirs) ’ . Ashok Kundu, son of Shri residey’r of Narmada Para, STaTion Road, Raipur‘. Kuber Ra’rhi, son of Shri G.P. Ra’rhl, residem‘ of Narmada Para, Sfa‘rion Road, Raipur. . Ajay TripaThi, son of Shri G.P. resident of Basan‘r Kundu, expired are Tripafhi; w La’re Sardar Keshar‘ Singh BhaTia, aged 5O years, resident of 3/231 Raja MR. Colony, Raipur'. 6. Kailashnafh Bazar‘i, son of Mur‘lidhar‘ Bazar‘i, residen‘r rof Gudhiyar‘i, Raipur. 7.Sm‘r. Kamla Bai, widow, V3I/mk‘hufk resident of Girija Kund Ward, Dur‘ga Chow, Seoni, TehsH & Disfric‘r Seoni (MP) 8. Smf. Dur'ga Bai, wife of Shr'i Damodar Prasod Sharma, near Railway Ga‘re, Fafadih, Raipur (CG) PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA \ HIGH COURT OF CHHATTHSGARH A’i: 3JLASPUR r W.P. (227) N0. 6050 of 2009 Muralidhar Bazari Petitioner Pbaintifi Versus Resgondents Iqbal Singh Bhatia & others, Defendants WRIT PETITION UNDER ARTICLE 227 OF THE CONSTTTUTION OF iNDiA 1s5: Hon'bie Mr. NTK. Agarwaa; .14 Present : Shri BP Sharma with Shri Kshitiz Sharma, Advocates for petitioner. ‘ shri Rajeev Shrivastava with VShri Maiay Shrivastava; Advocates for respondent No. 3 td’s‘.‘ ORAL ORDER (Passed on 14‘“ my of December, 24mg} With the consent of the parties, the matter is heard finaliy. The instant petition is directed against ihe order dated 07.092009 (Annexure P/1), passed by the First Civil Judge, Class i, Raipur (CG), in Civii Suit No. 49-A/O3, whereby and whereunder the application ' preferred by the petitionerlplaintiff under Order 26 Rule 1 read'with — Section 1’51 of CPC has been dismissed. 2. The brief facts of the cas’é are that, the petitioner/plaintiff preferred a suit seeking relief of cancellation of Sale—deed said to be executed ‘by the respondent No. 6 in favour of respondent No. 1 to 4 on .31 .01 .1992. ln that suit, plaintiff filed his affidavit as envisaged under Order 18 Rule 4 of CPC as evidence and applied for his cross examination on Commission on the ground that the plaintiff i380 years oid and also suffering from Heart ailment, Diabetes and Blood Pressure. The Trial court, vide impugned order dated 07.092009 (Annexure P/1), dismissed the said application Hence this petition, Shri BP Sharma, learned counsel appearing for the petitioner would submit that the petitioner/plaintiff is an old aged pereon and undisputedly is suffering from Heart aliment, Diabetes and Blood Pressure, therefore, in View of Order 26 Rule 1 read with Order 18 Rule 4 of CPC, the trial court ought to have allowed him to be cross— examined by appointing Commissioner in this behalf Per contra, Shri Rajeev Shrivastava, learned counsel appearing for respondent No. 3 to 5 supported the order and submits that in view of facts situation of the case, the trial court has rightly dismissed the application preferred by the petitioner/plaintiff. l haveheard the counsel appearing for the parties and perused the order impugned. Undisputedly, the petitioner’s age is about 80 years. He has filed his examination—in-chief in the form of affidavit as envisaged under Order 18 Rule 4 of CPC and he promptly applied for his cross—examination on Commission also, therefore, in View of the facts situation of the case, the trial court ought to have aliowed him to be cross—examined by appointing Commissioner in this behalf. ln view of the above, in the considered opinion of this court, the petition deserves to be and is accordingly ailowed. The order impugned dated 07.09.2009 (Annexure P/1) is quashed. The trial court shall allow the petitioner's cross-examination on commission. For that, the trial court shall appoint any local counsel as Commissioner with the consent of the parties on 05.01.2010 upon petitioner’s depositing Commissioner Fee on the same day. The ;. Commissioner so appointed shall record the crass-examine of the petitioner/piaintiffin'terms of Order 18 Rule 4 of CPC on the date as may be fixed by the trial court and shall submit his report within a period of one month from 05.01 .2010. The parties are directed to remain present before the trial court on 05.01 .201 0. .lrxe . I Sd/- ' LN.K.Agrawalf. Judge l 5"?