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Mohamad Hanif Usmanbhai Vs. Soni Nurmohamad Usmanbhai and Bros. and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1983)1GLR786
AppellantMohamad Hanif Usmanbhai
RespondentSoni Nurmohamad Usmanbhai and Bros. and anr.
Excerpt:
- .....that he was suffering from several diseases besides having cataract in both the eyes. the learned trial judge rejected the application for appointment of a commissioner for recording evidence on the ground that the plaintiff could be helped or assisted by somebody else to bring him to the court to give deposition. it is not proper for the court to insist on the personal attendance of a witness even when he is not in a position to come by himself and somebody has to bring him to the court. the fact that the plaintiff is suffering from cataract in both the eyes and that he is old and infirm is sufficient ground on which the learned trial judge should have allowed the application of the plaintiff. if the criterion is laid down that a witness can be brought with the assistance of somebody.....
Judgment:

A.S. Qureshi, J.

1. Rule. Mr. K.V. Shelat appears and waives notice on behalf of the respondents. The present petition is filed by the original plaintiff against the order dated 1st September, 1982 passed by the learned Judge, City Civil Court, 8th Court, Ahmedabad, rejecting the application of the plaintiff to appoint a Commissioner for recording his evidence at Nagour (Rajasthan) on the ground that the plaintiff is old and suffering from several diseases and hence he was unable to attend the Court at Ahmedabad for giving evidence in the Court. The application was opposed by the present opponent who is the defendant in the suit. The suit is for dissolution and taking accounts of the partnership firm of which the plaintiff and the defendants who are brothers claim to be the partners. The plaintiff had produced before the trial court medical certificate showing that he was suffering from several diseases besides having cataract in both the eyes. The learned Trial Judge rejected the application for appointment of a Commissioner for recording evidence on the ground that the plaintiff could be helped or assisted by somebody else to bring him to the court to give deposition. It is not proper for the court to insist on the personal attendance of a witness even when he is not in a position to come by himself and somebody has to bring him to the court. The fact that the plaintiff is suffering from cataract in both the eyes and that he is old and infirm is sufficient ground on which the learned Trial Judge should have allowed the application of the plaintiff. If the criterion is laid down that a witness can be brought with the assistance of somebody or something, than probably, the provisions in the Civil Procedure Code regarding the appointment of a Commissioner for recording evidence would be wholly redundant. The present case seems to be an appropriate one where the Commissioner for recording evidence should have been appointed. Mr. S.S. Belsare the learned Counsel for the petitioner has submitted that it would be virtually impossible for the plaintiff to travel from Nagour to Ahmedabad to give deposition. He has even offered to pay expenses to the opponent who is his younger brother to cover the cost of the defendant having to engage another Advocate and possibly himself to travel to Nagour.

2. Mr. K.V. Shelat, the learned Counsel for the opponent has strongly urged that this is not a proper case where the Commissioner should be appointed for recording the evidence of the plaintiff at Nagour. According to him, the grandson of the plaintiff has written a letter containing a statement that the plaintiff is able to walk. The Court would rather rely on the opinion of the medical practitioner than rely on a casual remark by the grandson of the plaintiff. The parties have agreed that the plaintiff will reimburse the defendants to the extent of Rs. 400/- in respect of the extra cost that the defendants will have to incur in respect of the appointment of a Commissioner for recording evidence of the plaintiff at Nagour.

In the circumstances of the case, the impugned order of the learned Trial Judge is hereby set aside. The lower court is directed to appoint a Commissioner for recording evidence of the plaintiff at Nagour (Rajasthan) at the cost of the plaintiff. Rule is made absolute with no order as to costs.


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