1 chs1079.11.sxw ssm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 1079 OF 2011 IN SUIT NO. 604 OF 2007 Mahendra P. Dolakia ...Plaintiff. Vs. Mohan K. Kripalani & Ors. ...Defendants. Mr. Rahul Narichania a/w Ms. Priya Agarwal i/by M/s. Halai & Co. for the Plaintiff. Mr. N.C. Thakkar, Sr. Advocate i/by Ms. Purnima Singh for Defendant No.5. CORAM :- ANOOP V. MOHTA, J. DATE :- 26 SEPTEMBER 2011. P.C. :- The Plaintiff who is aged 67 years, has taken out this Chamber Summons under Order XVIII of the Code of Civil Procedure (for short, the CPC) basically on the foundation as provided in his affidavit in support of the Chamber Summons in paragraph Nos. 6 and 10, which is as under:- “6. I say that on the date of filing of the present Notice of Motion my age is 67 years. I say that my health is very frail. I am suffering from Heart Disease and about a year back I was operated for Heart By-Pass 2 chs1079.11.sxw ssm Surgery. I suffer from blood pressure, vertigo blood- sugar problem and many other ailments. I say that my health problems are aggravating due to which I am losing weight and have poor resistance power. About two months back, I had blood Hemorrhage in my Head and I was operated for the same at Bombay Hospital. I apprehend that I do not have much time left in my life. Annexed hereto & marked as Exhibit- B are the copies of various medical reports/ certificates evidencing my Heart and Brain Surgery. 10 I say that in view of age and precarious health conditions, I had filed a Notice of Motion No. 2441 of 2009 dated 7th July 2009 in the above suit praying this Hon’ble Court to. “expedite the hearing of the present suit and fix up a date for hearing of the suit”. I say that the Defendant Nos. 1 to 5 had also filed their reply on record. I further state that upon hearing the parties, the Learned Single Judge of this Hon’ble Court was pleased to reject the above Notice of Motion by an order dated 22nd March 2010. I say that the reason recorded by the Learned Single Judge vide its above mentioned order is that ‘in view of the present pendency of the suits which are pending for more than 20 years, it is not possible to hear the present suit which is only three years only’. Annexed hereto and marked as Exhibit “C” is a copy of the order dated 22nd March 2010, passed by the Ld. Single Judge in the Notice of Motion No. 2441 of 2009 filed by the Plaintiff abovenamed. I say that thereafter I preferred an appeal against the order dated 22nd March 2010, however since appeal was maintainable the same was disposed off by this Hon’ble Court vide order dated 11th June, 2010. Hereto annexed and marked as Exhibit-”D” is the copy of the order dated 11th June, 2010. I submit that the fact that I have undergone Two Major Surgeries, one for Heart and the other for Brain after filing the Notice of Motion No. 2441 of 2009, have completely changed my circumstances and my 3 chs1079.11.sxw ssm present motion needs more sympathetic considerations.” 2 Though the earlier Application for early hearing was rejected by this Court, I am inclined to grant this Chamber Summons in view of the averments already recorded above. Merely because the Plaintiff is aged 67 years that itself in the normal circumstances is not the reason to grant the early hearing as already recorded in the earlier order. However, in view of the change of circumstances and as stated that the Plaintiff is the only and sole witness whose evidence is very essential for proper adjudication of the matter and in view of ill health so recorded, I see there is no reason that such Application should not be granted. 3 The learned Senior counsel appearing for Defendant No.5 basically submitted that inspite of communication and request to give inspection of all those original documents which are part of this Chamber Summons, no inspection has been given. The defence of the Plaintiff which is reflected in the letter dated 26 August 2011 that the original documents are submitted to the insurance company for insurance claim. Therefore, merely because no inspection of all these documents are given, in the present facts and circumstances, I see no 4 chs1079.11.sxw ssm reason to deny the Chamber Summons/prayers so raised by the Plaintiff. 4 The Chamber Summons is allowed. There shall be no order as to costs. 5 By consent, Mr. Ruchir Tolat, Advocate is appointed as a Commissioner to record the evidence. The parties to take steps in accordance with law. The Plaintiff to file affidavit in support within a period of six weeks. In the meantime, the parties to take all steps for inspection of the documents, if any, as well as notice to admit the documents also. The parties to share the costs of the commissioner. (ANOOP V. MOHTA, J.)