1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.6820 OF 2008 Rajeshwari Pandurang Nagarkar ...Petitioner vs. Laxman Gopal Kanhere & Ors. ...Respondents Mr.R.M.Pethe for the petitioner Mr.U.P.Warunjikar for the respondent no.1 Mr.A.B.Tajane for respondent no.2 CORAM :A.S.OKA,J. DATE : AUGUST 3, 2009 P.C. 1 By this petition under Article 227 of the Constitution of India, the petitioners have taken an exception to the order dated 11th August 2009 passed by the trial court. By the said order, an application made by the petitioners for examining a witness on commission on health ground has been rejected. Various submissions have been canvassed by the learned counsel appearing for the petitioners. He submitted that the certificate issued by the medical practitioner which was produced along with the application has been discarded only on the ground that the medical practitioner who issued the certificate is a close relative of the witness. He pointed out that if the medical certificate issued by the medical practitioner who was treating the witness records an opinion that it was not advisable to undertake 2 travelling, the witness cannot be forced to undertake travelling for deposing before the court. The learned counsel for the contesting respondents pointed out that an affidavit of a defendant is placed on record which shows that the witness is doing his normal physical activities and is regularly moving about. 2 It must be noted here that the application on which the impugned order has been passed has been filed on 25th July 2007. Reliance was placed on the medical certificates. The last of the certificates on which reliance was placed is dated 7th August 2007. On the basis of the certificates of the year 2007, as of today, in August 2009 it is difficult to come to a conclusion that even as on today the witness is unable to undertake travelling for deposing in the suit which is pending in the Civil Court at Satara. The witness is stated to be a resident of Pune. 3 Considering the lapse of time, this petition need not be considered on merits. It is for the petitioners to apply afresh before the trial court along with a latest medical certificate, if any, for the relief of appointment of Court Commissioner to examine the witness. To avoid any loss of further time as the final decree proceedings is of the year 1989, the petitioners can always apply to the trial court to assign a fixed date 3 and time so that the witness who is allegedly suffering from heart ailment can be conveniently examined before the court. 4 Subject to what is observed above, no case is made out for interference. Writ Petition is rejected. 5 Notwithstanding the rejection of the petition, it will be open for the petitioners to file a fresh applications as indicated above. If such applications are made, the trial court will deal with the same in accordance with law. However, it must be observed that the fact that medical certificate has been issued by a medical practitioner who is a relative of the witness by itself is not sufficient to reject the medical certificate issued by the said medical practitioner. JUDGE