kbp 1 8209-08.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBA CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8209 OF 2008 Madhukar Raghunath Bole ..Petitioner Vs. Ranjana Prakas Surve and ors. ..Respondents ......... Mr.K.S.Dubey i/b.Mr.M.C.Dixit, for petitioner. Mr.R.D.Suryawanshi, for respondent no.1. ....... CORAM : A.S.OKA, J.. DATE : 7 th OCTOBER, 2009. P.C. : 1] Heard learned counsel for the petitioner and learned counsel for the first respondent. 2] The petitioner is the fourth defendant in a suit filed by the first respondent. The challenge in this petition under Article 227 of the Constitution of India, is to the orders dated 18 th April, 2009 and 14 th August, 2008 passed by the trial court. 3] The petitioner was desirous of examining one Smt.Talrulata Dnyaneshwar Tousalkar as a witness. On various grounds, an application was made for recording the evidence of the said witness on commission. It was contended by the petitioner that considering the old age and various ailments suffered by the witness, it is not possible for the said witness, who is resident of Dadar, Mumbai, kbp 2 8209-08.sxw to visit the court at Ratnagiri. The said application was opposed by the first respondent. By order dated 18 th April, 2009, the said application was rejected. The learned Judge observed that the medical certificate of the witness produced on record does not show that the witness was bedridden. The learned Judge also observed that the first respondent plaintiff will suffer a loss as she will have to incur a very heavy expenditure for taking her lawyer to Mumbai. 4] Thereafter, a second application was made for the same relief by the petitioner. In support of the second application, an affidavit of the said witness was filed. The documents showing her age as well as her health condition were annexed to the said affidavit. The medical certificate annexed to the affidavit showed that apart from hyper­tension the witness is suffering from arthritis of knee joint and she has been advised not to travel a long distance. The said application was opposed by the first respondent on various grounds. By order dated 14 th August, 2008, the learned trial Judge rejected the prayer made by the petitioner. 5] It must be stated that the petitioner has deposited a total amount of Rs. 12,000/­ in this court for meeting expenses which may be incurred by the first respondent. It will be necessary to refer to the order dated 6 th January, 2009, passed by this court. The first paragraph of this order reads thus: “ Counsel for the petitioner submits that in addition to kbp 3 8209-08.sxw the expenses to be incurred for commission fees, the petitioner shall take the responsibility of traveling and Dearness Allowances of the plaintiffs as well as his Advocates. The petitioner assures to provide reasonable and suitable accommodation to the plaintiff and his Advocates during their stay in Mumbai. In the circumstances, issue notice Returnable on 23 rd January, 2009. Mr.V.K.Damale waives notice for respondents. Petitioner to serve the remaining respondents and file affidavit of service before 22 nd January, 2009.” 5] After having heard learned counsel for the parties, I am of the view that the petitioner cannot be deprived of an opportunity to examine the said witness. The age of the witness is 74 years. Along with the second application, an affidavit of the said witness who is a resident of Dadar, Mumbai is filed which shows that it will not be possible for her to travel upto Ratnagiri for recording her evidence. She has stated that she is suffering from hypertension and arthritis. Age proof and medical certificate was annexed to the said affidavit. She has stated that her 82 years old husband is also suffering from the same ailments. A total amount of Rs.12,000/­ has been deposited by the petitioner in this court. This amount is sufficient to take care of the expenditure which may be incurred by the first respondent for the purpose of recording evidence of the witness on commission. This takes care of the expenditure which may be incurred by the kbp 4 8209-08.sxw first respondent for herself and for her advocate. In the circumstances, the petitioner deserves to be granted a permission to examine the said witness on commission. The learned counsel for the petitioner and first respondent agree that Mr.A.R.Bapat (Retired Prothonotary and Senior Master) be appointed as the Court Commissioner to record the evidence of the said witness. It is obvious that for the time being the petitioner will have to pay the charges and remuneration of the Court Commissioner. The amount paid by the petitioner in that behalf shall be treated as a part of the costs incurred by the petitioner on litigation. The trial Court will pass appropriate order in that behalf while deciding the suit. The Court Commissioner will have to ensure that the recording of cross­examination of the witness is completed as far as possible on the same day. The parties will have to co­operate with the Court Commissioner for ensuring that the recording of evidence is not prolonged. Hence, I pass the following order: (a) The impugned orders are quashed and set aside. (b) The petitioner is permitted to examine Smt.Talrulata Dnyaneshwar Tousalkar as his witness. The petitioner will file an affidavit in lieu of the examination in chief of the said witness before the trial Court on or before 9 th November, 2009. (c) Mr.A.R.Bapat (Retired Prothonotary and Senior Master) is appointed as the Court Commissioner to record formal examination­in­chief and the cross­examination of the said kbp 5 8209-08.sxw witness. It will be open that the first respondent to withdraw the sum of Rs.12,000/­ deposited in this Court by the petitioner. As observed earlier, it will be responsibility of the petitioner to initially pay the charges and remuneration payable to the Court Commissioner. (d) The Court Commissioner will ensure that as far as possible, the recording of the cross­examination is completed on the same day on which the formal examination­in­chief is recorded. (e) The Court Commissioner to act upon an authenticated copy of this order. (f) Writ Petition is disposed of in the above terms. ( A.S.OKA, J. )