1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION Notice of Motion No.67 of 2010 . in Testamentary Suit No.11 of 1990 in Testamentary Petition No.57 of 1990 Shail Lal .. Plaintiff v/s. Dr.(Mrs) Pushpa Madhu Vyas & Another ..Defendants Mr.R.V. Govilkar for the Plaintiff Mr.T.B.Dalal i/b. Vasant Dhawan for the Defendants CORAM : R.Y.GANOO, J. DATED : 9th July, 2010 P.C. : 1. By this notice of motion the plaintiff wants that the order dated 30.6.2009 as regards appointment of Commissioner for the purpose of recording of evidence be recalled and the evidence be recorded in the court. Affidavit in reply is filed to this notice of motion. 2 2. I have heard learned Counsel on both sides. Learned Advocate for the plaintiff drew my attention to the affidavit in support of the notice of motion. He submitted that for about 10 dates, the Commissioner has charged Rs.30,000/- and that the plaintiff is unable to bear the Commissioner’s charges as she is in financial difficulties. Learned Counsel Mr.Govilkar submitted that on account of financial difficulties faced by the plaintiff, the court should recall the said order of appointment of Commissioner. 3. Learned Counsel Mr.Dalal submitted that the Commissioner has charged in accordance with the rules and the defendant has also paid equal amount to the Commissioner though he is also facing difficulty. According to the learned Counsel Mr. Dalal, there is no need to vary the order and the job of recording of evidence through Commissioner would be faster. 4. After having considered the rival submissions, one thing is abundantly clear on the basis of record that the plaintiff is unable to bear the Commissioner’s charges. Plaintiff is about 72 years old and thriving on her investment/other monies which are with her. In my 3 view, if a party expresses a desire that the said party is unable to bear the Commissioner’s charges and the evidence is to be recorded in the court, the court will have to accept the request and the court will have to set aside the Appointment of Commissioner’s order. It may be true that the defendants are equally paying the Commissioner’s charges. Under what circumstances, they are paying the Commissioner’s charges may not be considered as no grievance is made by the defendant in writing that order be revoked for financial difficulties. 5. In my view, if the plaintiff has manifested her intention that she is unable to pay the Commissioner’s charges, the court can’t compel her to go ahead by recording evidence before the Commissioner and the court should accept the request of the plaintiff. 6. In such circumstances, the motion is required to be made absolute in terms of prayer clause (a). It is clarified that while hearing this notice of motion, this court has not gone into the question as regards certain allegations made against the Commissioner while arguing the matter as those allegations were not on record. In the circumstances, the following order is passed. 4 ORDER i) Motion is made absolute in terms of prayer clause (a). ii) There shall be no order as to costs. iii) Commissioner is directed to file in the court, the papers which are in his possession, including the notes of evidence, if the same has remained with him through oversight. This be done within a period of 10 days upon service of authenticated copy of this order upon the Commissioner. iv) Matter is adjourned to 6.8.2010 for recording of evidence before the court. [R.Y.GANOO, J.]