Bombay High Court
Dipti Wd/O Ramendra Prasad vs Rajendra S/O Vishwanath Prasad ... on 6 December, 2016
Bench: Ravi K. Deshpande
wp2550.16.J.odt 1/3
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.2550 OF 2016
Dipti wd/o Ramendra Prasad,
Aged about 61 years,
Occ: Household,
R/o Plot No.56, Bhoslewadi,
Lashkaribagh, Nagpur. ....... PETITIONER
...V E R S U S...
1] Rajendra s/o Vishwanath Prasad,
Aged about 63 years, Occ: Nil,
R/o Behind J.M. School, Kumbhar Toli,
Gondia.
2] Yogendra s/o Vishwanath Prasad,
Aged about 72 years, Occ: Retired,
R/o Plot No.56, Bhoslewadi,
Lashkaribagh, Nagpur. ....... RESPONDENTS
-------------------------------------------------------------------------------------------
Shri Amit Khare, Advocate for Petitioner.
Shri Y.V. Prasad (Respondent No.2 in person).
-------------------------------------------------------------------------------------------
CORAM: R.K. DESHPANDE, J.
th DECEMBER, 2016.
DATE: 6
ORAL JUDGMENT
1] Rule made returnable forthwith. Heard finally by
consent of the learned counsel for the petitioner and the
respondent No.2 appearing in-person.
2] The challenge is to the order dated 11.03.2016
wp2550.16.J.odt 2/3
passed below Exhibit-107 by the trial Court in Regular Civil Suit
No.803 of 2009. The trial Court has rejected the application filed
by the plaintiff No.2 for her examination on commission. It is not
in dispute that the plaintiff No.2 is suffering from tongue cancer
and she was admitted in the hospital. The discharge summary
from 24.06.2014 to 29.07.2014 and 07.11.2014 to 08.11.2014
was produced showing the treatment along with the prescription
dated 20.02.2016. The trial Court therefore, ought to have
allowed the application and permitted the examination of the
plaintiff No.2, who is the petitioner before this Court by
appointing Court Commissioner. The order impugned cannot
therefore, be sustained. The same needs to be set aside.
3] The respondent No.2 submits that the medical
certificate submitted by the petitioner is not acceptable in
evidence. The issues involved before the Court do not relate to the
health of the petitioner/plaintiff No.2, but the matter pertains to
partition and separate possession, hence at the interlocutory stage
the admissibility of such document for seeking appointment of
Court Commissioner cannot be disputed.
4] In the result, the petition is allowed. The order dated
wp2550.16.J.odt 3/3
11.02.2016 passed below Exhibit-107 in Regular Civil Suit No.803
of 2009 is hereby quashed and set aside. The application for
examination of the petitioner-plaintiff No.2 by appointing Court
Commissioner is allowed. The examination and cross-examination
of the said witness shall be completed within a period of 15 days
from the date of first appearance of the parties before the trial
Court. The parties to appear before the trial Court on 10.01.2017
and no further adjournment shall be granted.
5] Rule, is made absolute in the above terms. No order
as to costs.
JUDGE
NSN
