Final Order 1

Order Details: Chamber summons
Pdf Text: 1 CS 179019 IN SUIT 74172004
MHCC010101972019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 1790 OF 2019
IN
SUIT NO. 7417 OF 2004
Ajay Sohanlal Jhuria ] ...Plaintiff.
Versus
State of Maharashtra & Others ]…Defendants.
Appearance:
Ld Advocate R.R. Yadav for Plaintiff.
Ld Advocate Parimal Shroff for Defendant No.11, 11B & 11C.
CORAM : K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 25/8/2022
ORAL ORDER
1) Defendant No.11, 11(b) and 11(c) have taken out present
chamber summons for appointment of court commissioner for recording
cross examination of their witness Mr. Rohit Vinayak Shah.
2) Perused the chamber summons, affidavit in support of
chamber summons, reply affidavit of plaintiff, affidavit in rejoinder and
record. Heard arguments advanced by Ld advocate for defendant No.11,
11(B) and 11(C) and Ld advocate for plaintiff.
3) Ld advocate for applicants/defendant No.11, 11(B) and
11(C) argued that defendant No.11, 11(B) and 11(C) have filed
affidavit in lieu of examination in chief and further affidavit in lieu of
examination in chief of their witness Mr. Rohit Vinayak Shah on record.
The witness Rohit Vinayak Shah is 62 years old and he is suffering from
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various ailments and therefore, it will be appropriate to appoint court
commissioner for recording his cross examination. They are ready to pay
Court Commissioner's fees. Therefore, chamber summons be made
absolute.
4) On the other hand Ld advocate for plaintiff argued that the
ailment of the witness Rohit Vinayak Shah are not of serious nature.
Therefore, there is no just cause for appointing Court Commissioner.
Hence, chamber summons be dismissed. Ld Advocate for plaintiff relied
on following judgment:
S. Bala Subramaniam vs M. Chandira of Hon'ble Madras High Court
dtd.29/6/78.
Court has gone through observations therein.
5) From the matter on record it appears that Mr. Rohit
Vinayak Shah has filed his affidavit in lieu of examination in chief and
further affidavit in lieu of examination in chief as witness of defendant
No.11, 11(B) and 11(C) on record. From the medical certificate at Exh.A
filed with the affidavit in support of chamber summons it appears that
above witness of defendant No.11, 11(B) and 11(C) is having certain
ailments. The matter is old one. Considering the reasons stated in the
affidavit in support of chamber summons and the fact that matter is old
one, in the interest of justice and for the expeditious disposal of the suit
it will be appropriate to appoint Court Commissioner for recording cross
examination of the witnesses as sought as per Order 26 Rule 4A of Code
of Civil Procedure.
6) Defendant No.11, 11(b) and 11(c) are ready to pay Court
Commissioner fees and therefore, no prejudice will be caused to the
plaintiff. In view of the provision of Order 26 Rule 4A there appear no
substance in the contention of the plaintiff that there is no just cause for
appointment of court commissioner. Moreover, considering the facts of
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the present matter it appears that facts of the judgment relied by the
plaintiff cited supra are different.
7) Considering the matter on record and above discussion
chamber summons deserves to be made absolute. Therefore, court
proceeds to pass the following order:
ORDER
1) Chamber Summons No.1790/2019 is made absolute.
2) The Registrar of the City Civil Court Bombay shall nominate any one
Advocate from the list of advocates selected for the post of Court
Commissioner for recording crossexamination of defendant no. 11,
11(B) and 11(C). Witness Mr. Rohit Vinayak Shah.
3) Defendant no. 11, 11(B) and 11(C) shall deposit Rs. 5000/ in the
court towards fees of the Court Commissioner.
4) In case the cross examination of witness is not concluded within one
sitting then, the defendant no. 11, 11(b) and 11(c) shall pay Rs. 3000/
for every further sitting to the Court Commissioner for recording cross
examination.
5) On payment of deposit of fees of Court Commissioner, writ of Court
Commissioner be issued to the concern Court Commissioner.
6) Registrar of this court shall also nominate the concern official for
carrying the record of present suit at the place of execution of Court
Commission on the date execution of the Court Commission.
Date : 25/8/2022
(Shri. K.P. Kshirsagar)
Judge
City Civil Court,
Gr. Mumbai.
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Dictated on: 25/8/2022.
Typed on : 25/8/2022.
Checked on :25/8/2022.
Signed on :26/8/2022.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
30/8/2022 Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.08)
Date of Pronouncement of
JUDGMENT/ORDER
25/8/2022.
JUDGMENT/ORDER signed by P.O.
on
26/8/2022.
JUDGMENT/ORDER uploaded on 30/8/2022.
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