1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 10861 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 10861 OF 2010 *** 1. Heard Advocates Shri Khan for the Petitioner, Shri Amol S. Sawant for Respondent Nos.1, 2 and 3 and learned A.G.P. Shri D. R. Korde for Respondent No.5 and 6. 2. It is the contention of Shri Khan that when Commissioner found that witness to be examined by him was not in position to affirm the statements contained in affidavit in examination in chief, he ought to have reported the matter to Civil Court. According to learned counsel, an objection to cross examination of such witness by other side (plaintiff) was raised before the Commissioner, but that was not recorded and the Commissioner permitted plaintiff to cross examine the witness. Thus, failure on the part of Commissioner to follow proper procedure has resulted in denial of justice. Because of the statement showing inability to 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 10861 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. affirm the affidavit, relatives of said witness (present petitioner) were shocked and he was taken to a doctor. The doctor diagnosed that he was suffering from disease of temporary loss of memory. According to learned counsel after learning this, application at Exhibit-88 was moved to discard the evidence recorded and that has been erroneously rejected. 3. Advocate Shri Sawant, on the other hand, states that after Court Commissioner recorded the inability of petitioner to affirm the statements made on affidavit, without any objection by defendants, the Commissioner permitted the cross examination. The cross examination also reveals that the witness has spoken truth and after realising that damage, further story has been prepared. According to him, there is no jurisdictional error or perversity. 4. After hearing respective counsel, I find 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 10861 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. that Petitioner nowhere raised any objection before the Commissioner and permitted present Respondent Nos.1 to 3 to cross examine that witness. The application moved on 6th September, 2010 vide Exhibit-88 shows the disease suffered by witness as "dementia". However, that application does not disclose necessary details. The trial Court has in this back ground applied its mind and rejected it. All necessary material is looked into by trial Court and there is no jurisdictional error or perversity. Petition is, therefore, rejected. [B.P.DHARMADHIKARI, J.] Dated:07/01/2011. ans/10861