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SCA/3883/2011 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3883 of 2011
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JAGADAMBA
CEMENTS LTD THROUGH DIRECTOR - Petitioner(s)
Versus
GUJARAT
ELECTRICITY BOARD & 1 - Respondent(s)
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Appearance :
MR
VIPUL S MODI for
Petitioner(s) : 1,
NOTICE SERVED BY DS for Respondent(s) : 1 -
2.
MS LILU K BHAYA for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 27/04/2011
ORAL
ORDER
Rule.
Learned counsel Ms. Bhaya waives service. With the consent of both
the sides, the matter is taken up for final hearing today.
1. This
petition has been preferred against the orders passed by the learned
4th Addl. Sr. Civil Judge, Palanpur below application
Exhibits-294 & 295 filed in Special Civil Suit No.127/1997 dated
16.11.2010 and further to direct the Court below to take on record
the Affidavit of evidence dated 28.10.2010 of the petitioner by
allowing application Exhibit-295.
2. The
facts in brief are that respondent no.1 herein had filed Special
Civil Suit No.127/1997 before the Court of learned Civil Judge, S.D.,
Palanpur for recovery of Rs.21,66,160.42 from the petitioner being
the alleged unpaid dues towards electricity bills and interest
thereon. In the said suit, the petitioner submitted his written
statement cum counter claim of Rs.1,00,63,044/-. In 1994 proceedings
were initiated before the B.I.F.R. in respect of the
petitioner-Company and it culminated in the year 2007.
3. Thereafter,
the petitioner submitted an application seeking permission of the
trial Court to amend the written statement cum counter claim.
However, the said application was rejected vide order dated
17.11.2009. Being aggrieved by the said order, the petitioner
preferred Special Civil Application No.2042/2010 before this Court.
The said petition came to be allowed vide order dated 13.05.2010.
4. Thereafter,
on 16.11.2010 the petitioner tendered affidavit of evidence
Exhibit-294 and application Exhibit-295 for appointment of Court
Commissioner for cross-examination before the trial Court. However,
both the applications came to be rejected by orders dated 16.11.2010.
Against the said orders, the petitioner has preferred the present
petition.
5. Heard
learned counsel for the respective parties and perused the documents
on record. The Affidavit of evidence Exhibit-294 was filed under
Order 18 Rule 4 of C.P.C. The Court below rejected Exhibit-294
affidavit on the ground that it was not sworn before it but, was
sworn before a Notary. However, considering the provisions of Section
139 r/w. Order 18 Rule 4 of C.P.C., an Affidavit of evidence can be
sworn either in the Court or before a Notary. Hence, the Court below
has erred in rejecting Exhibit-294 Affidavit.
6. So
far as application Exhibit-295 seeking appointment of Court
Commissioner for cross-examination is concerned, the said application
has been rejected mainly on the ground that the case is ten years old
and that a patient, even after having under Angioplasty, could travel
and do his routines comfortably. In the application Exhibit-295, it
has been categorically averred that the petitioner is 80 years of age
and is residing in Mumbai. It is also averred that in the past he has
suffered heart-attacks and that he has undergone Angioplasty on two
different occasions and the last one being performed in April 2010.
Considering the age of the petitioner and his physical condition, the
Court below ought to have allowed the application Exhibit-295.
7. In
view of the above discussion, the petition is allowed. The impugned
orders passed below Exhibit-294 & 295 are quashed and set aside.
The Affidavit of evidence Exhibit-294 is allowed. It shall be treated
as one filed under Order 18 Rule 4 of C.P.C. and shall taken on
record, subject to the right of cross-examination by the other side.
The Exhibit-295 application is allowed and the Court below is
directed to appoint a Court Commissioner, as prayed for in the said
application. However, the expenses of the Court Commissioner as also
the expenses of the Officer and Lawyer of the respondent-Company, who
shall travel to Mumbai from Palanpur, shall be borne by the
petitioner. The petition stands disposed of accordingly. Rule is made
absolute.
[K.
S. JHAVERI, J.]
Pravin/*
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