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SCA/10103/2009 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10103 of 2009
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TRUPTIBEN
AJAY MARFATIYA AND ANOTHER
Versus
KOKILABEN
DINESHBHAI ASLOT AND OTHERS
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Appearance :
MR
PK PAREKH for
the Petitioners
None for Respondent(s) : 1,
MS SHAILI A KAPADIA
for Respondent(s) : 1.2.1
NOTICE SERVED for Respondent(s) : 1.2.2
- 4.
NOTICE SERVED BY DS for Respondent(s) : 1.2.2 -
4.
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CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 12/04/2010
ORAL
ORDER
1. The
petitioners original plaintiffs are before this Court being
aggrieved by an order passed by the learned 6th Additional
Civil Judge (SD), Bharuch below application Exh.178 in Special Civil
Suit No.242 of 1998 dated 14.08.2009, whereby the petitioners
plaintiffs had prayed for appointment of Court Commissioner for
recording evidence of the two witnesses.
2. When
the matter is called out, Mr.Parekh, learned advocate for the
petitioners submitted that one of the witnesses has already expired.
He produced a copy of the death certificate of Dr.Bipin Hiralal
Nanavati. He submitted that before he has to produce similar
certificate for another witness, it is necessary that the present
petition is heard and grant of necessary relief is considered.
3. Learned
advocate for the petitioners invited attention of the Court to the
contents of an application given by one Smt.Shusma G.Dalal to the
learned Civil Judge (S.D.), Bharuch dated 14.06.2009, wherein the
reasons are set out as to why it is not possible for her to come to
the Court. It is also mentioned in the said application that the
witnesses are ready and willing to cooperate with the Court and are
ready to get their evidence recorded, if a Court Commissioner is
appointed.
3.1 Learned
advocate for the petitioners invited attention of the Court to the
contents of application Exh.178 and the order passed below the same.
He vehemently submitted that only because the Court Commissioner is
not going to record the demeanor of the witnesses, is no ground for
not passing an order of appointment of Court Commissioner.
The
submissions of the learned advocate for the petitioners are not found
to be acceptable. The learned Judge has recorded in its order dated
14.06.2009 that as the witnesses have not pleaded to the effect that
they are not able to discharge their daily routine and that they are
not bedridden, the request of appointment of Court Commissioner for
recording the evidence cannot be considered favourably.
4. Learned
advocate for the petitioners relied upon a decision of the Hon’ble
the Apex Court in the matter of M/s.Filmistan Private Ltd.,
Bombay Vs. M/s.Bhagwandas Santprakash & Anr.,
reported
in AIR 1971 SC 61,
wherein the Hon’ble the Apex Court had an opportunity to consider the
provisions of Section 75 of the Code of Civil Procedure, 1908 and in
par-2, the Court observed as under:-
2. Admittedly
the witnesses sought to be examined at Kabul are relevant witnesses.
All of them are living out side the jurisdiction of the Court and
hence they are not amenable to the process of the Court. It was said
on behalf of the appellant that one of the witnesses sought to be
examined is an agent of the 1st defendant and therefore that
defendant could have produced him in Court for examination. As
regards the other witnesses, it was said that the facts that they
were expected to depose could have been established by other
evidence. We have no doubt that these facts must have been
considered by the learned trial Judge. The order under appeal is
essentially a discretionary order. We do not think that a case is
made out for interfering with the discretion of the learned trial
Judge. The fact that the witnesses examined on commission cannot be
effectively cross-examined or their examination will entail heavy
costs are not sufficient circumstances to interfere with the
discretion of the learned trial Judge.
In
the considered opinion of this Court, this decision has no
application to the facts of the present case. It is true that it is
the power of the Court to exercise discretion in the matter of
granting prayer to the effect that the evidence should be recorded by
appointment of Court Commissioner or not. In the present case, the
Court has found, on facts, that the circumstances are not such which
will warrant an order of appointment of Court Commissioner to record
evidence.
5. In the
result, the petition fails and the same is dismissed. Notice is
discharged. Ad interim relief granted earlier is vacated. No costs.
(Ravi
R.Tripathi, J.)
*Shitole
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