1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION NMT/25/2010 IN TESTAMENTARY SUIT NO.36 OF 1984 IN TESTAMENTARY PETITION NO. 449 OF 1984 Vijayprakash Chandrarao Sawant ...Plaintiff Vs. Ramakant Chandrarao Sawant & ors. ...Defendants. Mr. S. U. Kamdar, Sr.Counsel with Ms.Vrishbha Shah i/b. Apex Consillis for the Plaintiff. Mr.Tejas Donde for Defendant no.3. Mr.P.J.Thorat for defendant no.4. CORAM :- ANOOP V. MOHTA, J. DATED :- 23rd February, 2010. P.C.- 1 This Notice of Motion is taken out after the consent order dated 23rd June, 2009 in view of th averments made in paragraphs 4 to 7 of the affidavit in support. 2 The submission of defendant no.3 as well as defendant no.4 is that even after the certificate of January, 2010 the said witness no.1-Ashok Nadkarni appeared before the Commissioner at Panaji and was cross- examined. However, considering the averments made and even recording of the learned Commissioner dated 7.2.2010 and as averred in the 2 paragraphs 4 and 5, which is reproduced below, I am of the view that, to avoid further delay and complication and in the interest of justice, the plaintiff's witness Mr.Ashok Nadkarni be further cross-examined at his residence at village : Shiroda, taluka - Vengurla, Dist. Sindhudurg. “4 The said witness is a senior citizen aged about 72 years and has recently suffered a setback as regards his health. Sometime in or about December, 2009 the said witness suffered a fall and injured his head. The witness was hospitalized at Shivam Hospital in ICCU and was under the medical supervision of Dr.Shantanu Tendulkar at Kolgaon, Sawantwadi. The provisional diagnosis as stated by the said doctor discloses that the reason for the accident aforesaid was an acute brain attack. The said witness also has cataract. The said witness was in the Intensive Care Unit (I.C.U.). After being discharged from the hospital, the said witness is suffering from extreme difficulty in traveling or even going about his ordinary chores in the house. I say that the said witness can walk only with the help of somebody’s assistance and supervision. The said witness also complains of fatigue at short intervals and requires periodic rest by reclining on the bed. The said witness also complains of breathlessness. Hereto annexed and marked Exhibit IV is a copy of the discharged card in which the provisional diagnosis and a pulmonary function test results are clearly stated. 5 The said witness is giving evidence since 19th October, 2009 and has already been examined for about four hours by the Advocate for defendant No.4, who has completed the cross-examination. Since the venue is fixed at Panaji, Goa and the witness resides at Shiroda, which is about 60 kms. Away from Panaji. The witness has traveled from Shiroda to Panaji and back on the following dates i.e. 19th October 2009, 6th February, 2010, 7th February, 2010 and 13th February, 2010 that the witness is physically frail and had to be helped to the chair, though sound in mind. The said witness was present for cross-examination, but time was taken by the advocate for defendant no.4 on the ground that her counsel was not available and advocate for defendant no.4 was not in a position to cross-examine the said witness. In fact, the advocate for the plaintiff made the following 3 submission, which came to be recorded as follows: “It has required the assistance of four persons to bring the witness from his house at Sateli to the present venue which is a distance of 50 kms. One way and another 50 kms. On the way back.” 3 Another aspect is that defendant no.3 resides just 8 kms. away from this witness's house. Defendant no.4 has already cross-examined. It is made clear that this order is modified only with regard to the plaintiff's witness no.1 in view of the circumstances referred above. 4 It just cannot be overlooked that this witness is a scriber of the Will whose health is not good and as observed by the Commissioner it is quite frail. The submission that inspite of the certificate he appeared before the Commissioner at Panaji and that he is moving in the village that itself, in my view, cannot be the reason to overlook the certificate as well as the observation made by the learned Commissioner and in view of the avements made in the petition. No prejudice will cause to the parties, if this witness is examined as early as possible at his place. 5 Resultantly, this Notice of Motion is allowed in terms of prayer (a). No costs. (ANOOP V. MOHTA, J.)