1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 1185 OF 2007 Shri Sanjay Namdeo Patil. .. Petitioner. Vs Vijay Namdeo Patil & Ors. .. Respondents -- Shri P.N. Joshi for the Petitioner. Shri Suresh M. Sabrad for Respondent Nos.2 to 8. -- CORAM : A.S.OKA, J. DATE : 13th January 2010. P.C. . Heard the learned counsel appearing for the Petitioner and the learned counsel appearing for Respondent Nos. 2 to 8. The notices of Respondent Nos. 1 and 9 have been duly served. An application was made by the Petitioner ( who is original Opponent No.1 ) in the application filed by the 1st Respondent for grant of succession certificate under the provisions of the Indian Succession Act, 1925. The application was made on behalf of the Petitioner contending that his health condition was precarious and several constraints have been put by the doctors on his movement. It was contended that considering his precarious health condition, the petitioner is unable to remain present before the Court for recording his cross-examination. It is stated that an affidavit in lieu of examination-in-chief was already filed by the Petitioner. The prayer made by the Petitioner in the said application Exhibit-88 was for appointment of a Court Commissioner for examining the Petitioner on oath. 2 2. Learned counsel appearing for the Petitioner submitted that number of documents including medical certificates were produced before the Court in order to show that the Petitioner was suffering from heart ailment. He pointed out that the Petitioner collapsed in the trial Court. It is submitted that the trial Court has adopted a hyper technical approach inasmuch as the appointment of a Court Commissioner will be at the cost of the Petitioner. He submitted that in the face of the medical record produced, the trial Court ought to have allowed the said application. Learned counsel appearing for Respondent Nos.2 to 8 supported the impugned order. 3. I have considered the submissions. There is a considerable merit in the criticism of the impugned order offered by the learned counsel appearing for the Petitioner. However, it must be noted that the application on which the impugned order was passed was filed in the month of November, 2006. Before the Court considers the prayer of the Petitioner on merits, a report on the present health condition of the Petitioner will have to be examined. The interests of justice will be served if the Petitioner is permitted to file a fresh application for the same relief. Along with the application, the Petitioner will have to produce medical certificate and recent medical record of the Petitioner showing the condition of his health. The Petitioner has stated that he is prepared to bear the entire cost/expenses of the Court Commissioner. 4. In the circumstances, the Petition is disposed of by passing the 3 following order:- (a) It will be open for the Petitioner to file a fresh application for seeking the same relief which is sought in the Application Exhibit – 88. (b) It will be open for the Petitioner to file latest medical certificates and medical record of the Petitioner along with the application. (c ) If such an application is made, the same will be considered afresh on merits by the trial Court in the light of observations made in this order. (d) The application will be decided by the trial Court expeditiously as possible without being influenced by the impugned order. (e) Learned counsel appearing for the Petitioner states that a fresh application will be made within a period of two weeks from today. In view of this statement, the order dated 10th January, 2007 passed by the trial Court is set aside. 4 (f) The trial Court will make endeavour to dispose of the main application filed by the 1st Respondent as expeditiously as possible and within a period of six weeks from today. (g) The Petition is disposed of accordingly. (A.S.OKA,J)