1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.3078 OF 2006 ====== Raghunath s/o Ramrao Bhure (since deceased) through L.Rs.: 1. Kashinath s/o Ramrao Bhure, age 36 yrs, Occ. Agriculture, r/o Prakashnagar, Mukundwadi, Aurangabad. 2. Janabai w/o Ramrao Bhure, age 59 yrs, Occ. Agriculture, r/o Prakashnagar, Mukundwadi, Aurangabad. 3. Krishna s/o Ramrao Bhure, age 34 yrs, Occ. Agriculture, r/o Prakashnagar, Mukundwadi, Aurangabad. 4. Govind s/o Ramrao Bhure, age 30 yrs, Occ. Agriculture, r/o Prakashnagar, Mukundwadi, Aurangabad. Petitioners V E R S U S Subhash s/o Lahu Badhe, age 37 years, Occ. Business, R/o Jawahar Colony, Aurangabad. Respondent ====== Shri A.S. Bajaj, Advocate for the petitioner. Respondent served through paper publication. 2 CORAM : R. M. BORDE, J. DATE : 16 TH DECEMBER, 2009. ORAL ORDER :- 1. Heard Shri Bajaj, counsel appearing for the petitioner. None appears for the respondent though served. Rule. Petition is taken up for final disposal at admission stage. 2. The petitioner-defendant herein is raising exception to the order passed by Jt. Civil Judge (J.D.), Aurangabad on 13.03.2006 below Exh.-23 in RCS No.392/2002 whereby application tendered by the respondent/original plaintiff in respect of recording of evidence of the plaintiff on commission has been allowed by the trial court. The respondent-plaintiff presented suit claiming specific performance of agreement alleged to have been executed by deceased brother of the defendants. The defendants have controverted the contentions raised by the plaintiff in the plaint and contended that the document on which the plaintiff places reliance is forged and fabricated. After framing of issues affidavit-evidence of the plaintiff was placed on record. The plaintiff on 10.03.2006 presented an application contending therein that the plaintiff is suffering from blood pressure and heart disease and is under going treatment of Dr. Dande. Request was made for cross examination of witness by appointing commissioner. Application was opposed by the 3 defendant-petitioner herein on the ground that there is absolutely no evidence, documentary or otherwise produced on record to substantiate the contention of the plaintiff. However, without verifying the correctness or otherwise of the statement made in the application trial court proceeded to accept the request made by the plaintiff and directed appointment of the commissioner for recording evidence of the plaintiff. 3. I have perused the application and order passed by the trial court. Order is passed in the year 2006. Even assuming the contention of the plaintiff to be correct, that he was suffering from B.P. and heart ailment in 2006 he has not caused his appearance before this court to explain his state of health at present. The trial court appears to have issued orders directing examination of the plaintiff on commission without verifying the contentions raised in the application. There is absolutely no material placed on record to substantiate the contention in respect of ailment suffered by the plaintiff. In these circumstances, I am of the view that discretion exercised by the trial court in allowing the application is improper. The order passed by the trial court needs to be quashed and set aside and same is accordingly quashed and set aside. Rule is accordingly made absolute. The trial court shall proceed to decide the suit in accordance with the provisions of 4 Law. In the facts and circumstances of the case, there shall be no order as to costs. ( R. M. BORDE, J. ) ..... aaa/3078.06