Bombay High Court
Shri Ashok S/O Jagannath ... vs Shri Rajendra S/O Jagannath ... on 27 June, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.287 OF 2015
PETITIONER: Shri Ashok S/o Jagannath
Khandelwal, Aged 61 yrs., Occ-
Business, R/o Sati Fail, Near
hanuman Temple, Khamgaon, Dist.
Buldhana (Original Defendant)
-VERSUS-
RESPONDENTS: 1. Shri Rajendra S/o Jagannath
Khandelwar, Aged 59 yrs., Occ.-
Business, R/o Flat No.T-1, Sukhakarta
ig Apartment, Near Kela Post Office,
Khamgaon, Dist. Buldhana. (Original
Plaintiff No.1)
2. Shri Deepak S/o Harinarayan
Khandelwal, Aged 51 yrs., Occ-
Business, R/o Sati Fail, Near
Hanuman Temple, Khamgaon, Dist.
Buldhana (Original Plaintiff No.2).
Shri R. G. Puranik, Advocate for the petitioner.
Respondent Nos.1 and 2 served.
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CORAM: A.S. CHANDURKAR, J.
DATED: 27
th JUNE, 2016.
ORAL JUDGMENT :
1. The respondents have been served with the notice
issued by this Court. On 16-6-2016 as there was no appearance on
behalf of the respondents the matter was kept today. Today also
there is no appearance on behalf of the respondents. Hence, the
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learned Counsel for the petitioner has been heard by issuing Rule
and making the same returnable forthwith.
2. The petitioner is the original defendant in a suit for
declaration and permanent injunction that has been filed by the
respondents. During the course of trial, the plaintiffs commenced
their evidence. The plaintiff's witness No.2 filed his affidavit on
record and he was also cross-examined for some time. However,
during such cross-examination, he was unable to withstand the
same due to which his cross-examination was deferred. Hence, an
application below Exhibit-98 was moved on behalf of the plaintiffs
praying that a Commissioner be appointed for examining the said
witness.
3. The petitioner filed his reply opposing the said
application by stating that the plaintiff No.2 was fit and was
working for the entire day in his shop. No medical certificate was
filed on record. The trial Court by order dated 17-10-2014 allowed
the said application. Being aggrieved, the defendant challenges the
said order.
4. Shri R. G. Puranik, the learned Counsel for the
petitioner submitted that there was no case made out by the
plaintiff No.2 for being examined on commission. According to
him, the ground regarding alleged illness was incorrect as the said
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witness was working in his shop for the entire day. Without filing
any medical certificate, the application in question was sought to
be moved. He submitted that as the said witness was unable to
give answers during the course of cross-examination, the present
application had been moved.
5. Perusal of the application filed below Exhibit-98
indicates that it is merely stated that the plaintiff No.2 was
suffering from blood pressure. No supporting documents in the
form of any treatment given by any Medical Practitioner has been
placed on record. It is the specific case of the defendant that the
said witness was working for the entire day in his shop and was
unwilling to appear before the Court for being cross-examined.
It is to be noted that in an appropriate case the trial Court can
record the demeanour of a witness during his examination. In
absence of any supporting documents to indicate that said witness
was unable to attend the Court for medical reasons, which fact was
also observed by the trial Court in para 4 of the impugned order, I
do not find that the trial Court was justified in allowing the
application below Exhibit-98.
6. Considering the absence of any reasons in the
application below Exhibit-98 and as the cross-examination of the
said witness had already commenced, I do not find that any case
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was made out to pass the impugned order. The trial Court while
passing the impugned order exercised discretion with material
irregularity. Hence, a case for interference is made out.
7. In view of the aforesaid, the order dated 17-10-2014
passed by the trial Court below Exhibit-98 is set aside. The
plaintiff's witness No.2 shall be cross- examined in the trial Court.
The writ petition is allowed in aforesaid terms. No costs.
//MULEY//
JUDGE
