Final Order 1

Order Details: Chamber summons
Pdf Text: MHCC010020962018
CNR NO. MHCC010020962018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.286 OF 2018
IN
SUIT NO.9396 OF 1989
(HIGH COURT SUIT NO.783 OF 1989)
ANTHONY PATRICK LEWIS ] … Plaintiff
V/s.
1. MRS. AVRITA GOURI & Ors. ] ....Defendants
Appearances :-
Ld. Adv. Mr. Rajesh Patil for plaintiff.
Ld. Adv. S.P. Trivedi I/b A. Bharat and Co. for defendant No.1 and 3.
CORAM : HIS HONOUR JUDGE
SMT. R.K. KSHIRSAGAR
(C.R.No.13)
DATED : 8th December, 2021
ORAL ORDER
1. The present Chamber Summons is taken out by the plaintiff
for recording evidence of P.W.1 at his residential premises. It was
submitted that he filed the present suit against the original defendant,
now represented by defendant Nos.1 to 3 as his legal heirs. The suit
was filed for specific performance of Agreement for Sale. The plaintiff
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filed his affidavit of examination in chief alongwith list of original
documents. During the pendency of cross-examination, the wife of
plaintiff expired and he cannot remain present in the Court as he is
under treatment of Doctor and he is not keeping well. It was submitted
that he is senior citizen and he is not able to remain present before the
Court. Therefore, Court Commissioner be appointed to record the
cross-examination. No prejudice will cause to the defendant. However,
plaintiff will suffer serious prejudice if the Chamber Summons is not
allowed and therefore, Chamber Summons be allowed.
2. The defendant No.1 filed reply and strongly opposed the
application. It was submitted that the present Chamber Summons are
taken out to delay the matter. The plaintiff is regularly travelling to
U.K. but not coming to the Court. The plaintiff had not stated any
reasons as to why he is not able to remain present. The defendant is
not ready to attend the residential premises of plaintiff. No medical
reports/ letter annexed with the Chamber Summons and therefore,
Chamber Summons be dismissed.
3. Heard Learned Advocate for plaintiff and defendant No.1 at
length. The Learned Advocate for defendant relied upon Maharao
Sahib Brijraj Singh Vs. Rent Tribunal Kota Rajasthan reported in Civil
Writ Petition No.5559 of 2011. It has been held that a Medical
Certificate is to be filed alongwith application for appointment of Court
Commissioner.
4. After going through the rival submissions raised by both the
parties, it seems that the present suit is of the year 1989. The plaintiff
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is contesting the matter since then. It is admitted fact that plaintiff is a
senior citizen. The plaintiff even though had not filed any medical
report, a judicial note can be taken that being a senior citizen and in the
present pandemic condition if the plaintiff is required to attend the
Court, he would suffer serious harm. Moreover, the defendant had also
not filed any documents to show that the plaintiff is regularly travelling
to U.K. Considering the affidavit in support of the Chamber Summons,
the plaintiff on oath stated about the ailments, he is suffering due to old
age and hence, it would be appropriate to appoint Court Commissioner
for recording evidence of P.W.1.
5. The defendant strongly contended that she is not ready to
attend the residential premises of plaintiff. It therefore, seems that it
would be appropriate to consider the request of defendant and at the
same time in order to consider the condition of plaintiff, it would be
appropriate, if any, convenient nearby place is fixed to record the cross-
examination of P.W.1. I, therefore, proceed to pass the following Order:
ORDER
1. The Chamber Summons No. 286 of 2018 is allowed.
2. Court Commissioner is appointed to record the cross examination
of PW No.1 and to submit the report after recording the cross
examination.
3. Both the parties shall submit the name of Court Commissioner
agreed to both of them by way of joint pursis.
4. Both the parties in consultation with Court Commissioner shall fix
the nearby, suitable and convenient place for both the parties for
recording the cross-examination of PW No.1.
5. The Court Commissioner shall file report within 1 month of filing
joint pursis by both the parties.
6. All the expenses of Court Commissioner shall be borne by
plaintiff.
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7. Both the parties shall co-operate the Court Commissioner for
recording evidence of PW No.1.
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
Dt.: 08-12-2021 City Civil Court, Gr. MUMBAI
Dictated on : 08-12-2021
Transcribed on : 10-12-2021
checked on : 10-12-2021
Signed on : 10-12-2021
( Smt. R. K. Kshirsagar )
Judge, (C.R.No.13)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
10.12.2021 at 05.55 p.m.
UPLOAD DATE AND TIME (VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge H.H.J.Smt.R.K.Kshirsagar
(COURT ROOM NO.13)
Date of pronouncement of judgment/
order
08.12.2021
Judgment/order signed by P.O. on 10.12.2021
Judgment/order uploaded on 10.12.2021
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