1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1288 OF 2010 IN SUIT NO.1737 OF 1989 M/s.Sahyadri Construction Co. ..Plaintiff. Vs. Maharashtra State Road Transport Corporation. ..Defendant. Mr. Y. Ghoghavi i/by T. Jariwala & Co. for the plaintiff. Ms. Madhu Hiralkar i/by Chitnis Vaithy and Co. for the Defendant. CORAM : R.S. MOHITE, J. DATE : 7th June, 2010 PC : 1 This is a notice of motion taken out by the original plaintiff for recall of orders dated 5.4.2010 and 13.4.2010. It is the contention of the plaintiff that in the suit, court had directed that the evidence be recorded through the Commissioner. Ultimately though inspite of several extensions of 2 time, recording of evidence was not completed, hence, vide order dated 29.2.2008, this court directed that the evidence be recorded before the court and further directed the parties/witnesses to remain present in the court for recording the cross examination. The plaintiff s contention is that in so far as his witness Mr. D.V. Inamdar is concerned, his evidence in lieu of examination in chief was served upon the other side in Feb.2008 and tendered in this court after the order of this court dated 29.1.2008. He contends that the matter suddenly appeared on board after a gap of about one year and witness Mr. D.V. Inamdar was not well on that day. His Advocate was present and requested the court to adjourn the matter. However, the court by its order dated 5.4.2010 closed the evidence of Mr. Inamdar by further order dated 13.4.2010. This court recorded that in view of the fact that the plaintiff has not adduced any evidence and the defendant also does not wish to lead any evidence, the evidence of the defendant was closed and the 3 matter was thereafter adjourned for arguments. It is contended that the plaintiff s witness had remained absent only on the aforesaid date as he was not well. In the aforesaid special circumstances of this case, in order to decide the suit on merits, I am inclined to grant notice of motion after hearing both the sides subject to payment of costs. No reply has been filed on behalf of the defendant. In the circumstances, notice of motion is allowed in terms of prayer clause (a) subject to costs which is quantified at Rs.5000/- which will be payable to the defendant either directly or through its advocate within a period of one week from today. Both the parties are agreeable that further evidence of the plaintiff and the defendant will be recorded before the Commissioner. In the circumstances, the Prothonotary & Senior Master of this court is directed to appoint a Commissioner from the list of the Commissioners. The cross examination of the witness of the plaintiff Mr. D.V.Inamdar will be conducted before 4 the Commissioner so appointed. The Commissioner will be entitled to take on record the evidence in lieu of examination in chief of any further witness of the plaintiff as well as the defendant. The remuneration will be shared by the plaintiff and the defendant on pro rata basis in proportion to the hours consumed in respect of their witnesses. Both the parties state that they will cooperate the Commissioner in further recording of the evidence. It is made clear that if any of the witness of either parties remains absent without sufficient cause, then Commissioner will be entitled to close his evidence. The Prothonotary and Sr. Master of this court to complete the process of appointment of Commissioner within a period of two weeks and the Commissioner is expected to submit his final report within a period of eight weeks from the first date fixed by him. Liberty to the parties to apply in case of any difficulty. It is made clear that Commissioner will record the evidence as contemplated by order 18 5 Rule 4 of C.P.C. S.O. for 10 weeks for awaiting Commissioner s report. ( R.S. MOHITE, J.)