Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No.2509/2019 ..1.. InS.C.Suit No.1502/2015
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 2509 OF 2019
IN
S.C. SUIT NO. 1502 OF 2015
CNR NO : MHCC010068892019
Manohar Dagadu Jadhav, ...Plaintiff
Versus
1. Mr. Ramesh Dagadu Jadhav and Ors., ...Defendants
Appearance :
Mr. Omar Shaikh, Advocate for the Plaintiff.
Mr. Sandip Ghogare, Advocate for defendant No.1.
Mr. Akhlakh Khan, Advocate for defendant No.2 & 3.
CORAM : HIS HONOUR JUDGE
SHRI AJIT N. MARE (C.R.No.3)
DATE : 20TH MARCH, 2021.
ORAL ORDER
By this notice of motion, the plaintiff has sought
appointment of Court Commissioner for the purpose of his
examination as a witness.
2. The plaintiff claims that, the suit is fixed for recording his
evidence. Due to his advanced age and ailments, he is unable to
appear in the Court and face sustained cross examination. He is
under treatment by his family doctor, who has advised him
bedrest. He is ready and willing to pay the fees of the Court
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Notice of Motion No.2509/2019 ..2.. InS.C.Suit No.1502/2015
Commissioner as decided by this Court.
3. Notice of motion is opposed by defendant NO. 1 on the
ground that, the plaintiff has come with false contentions. The
documents filed by the plaintiff are yet not exhibited. The notice
of motion is thus premature. He is unaware of plaintiff’s
ailments. The medical certificate is not annexed with the copy of
notice of motion served upon him. The plaintiff is not suffering
from disease as alleged and is able to appear in the Court to face
the cross examination.
4. Perused. Heard.
5. The plaintiff has come with a case that, he is of advanced
age. In the title of the plaint itself the plaintiff has mentioned his
age as 74 years. In the affidavit in support of notice of motion his
age is shown as 77 years. The age of the plaintiff is not in
dispute. Thus, it is an admitted position is that, the plaintiff is of
quite advanced age. As on today he must be 79 years old.
6. The plaintiff has filed a medical certificate issued by Dr.
Karbhari mentioning therein that, the plaintiff was under
treatment by Dr. Karbhari for Pulmonary Koch’s and acute attack
of Bronchial Asthama. Said medical certificate was issued in the
year 2018. In view of explanation to Rule 1 of Order 26 of CPC
such medical certificate can be accepted by the Court.
7. Considering the plaintiff’s advanced age and his ailments
reflecting from the medical certificate, it can easily be gathered
that as on today his condition must be deteriorated than his
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condition in the year 2018 or 2019. In such circumstances, it is
amply established that, the plaintiff is of quite advanced age and
is not well. Considering that the plaintiff’s ailments is related to
his respiratory system, it is even otherwise not advisable for him
to travel in current situation of pandemic which is varying every
day. In such circumstances, I hold that, the plaintiff has made
out a case for appointment of Court Commissioner for his
examination. In the result, I pass following order:
ORDER
1. Notice of Motion No. 2509/2019 is made absolute
in terms of prayer Clause (a).
2. The parties to suit shall suggest the name of an
advocate for appointment as Court Commissioner.
3. The Fees of Court Commissioner is fixed at
Rs.3,000/ per sitting.
4. If the parties do not come with unanimous name of
advocate to act as Court Commissioner the Court
will decide such name.
5. The plaintiff shall deposit an amount of Rs.3,000/
as an advance towards Commissioner’s Fees.
6. Notice of Motion No. 2509/2019 is disposed of
accordingly.
(AJIT N. MARE)
Judge,
Date : 20.03.2021 City Civil Court, Gr. Mumbai.
Dictated On : 20.03.2021
Transcribed on : 22.03.2021
HHJ Signed on : 23.03.2021
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Notice of Motion No.2509/2019 ..4.. InS.C.Suit No.1502/2015
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
24.03.2021 5.54 p.m. Mahendrasing D. Patil
(Stenographer (GradeI)
Name of the Judge H.H.J. SHRI. AJIT. N. MARE
(Court Room No. 3)
Date of pronouncement of Order 20.03.2021
Order signed by P. O. on 23.03.2021
Order uploaded on 24.03.2021
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