BHARAT R DESAI Vs. NAINA MOHANLAL BHAL

JUDGEMENT

(1.) THIS matter has been pending on Board for admission since March. 2003. Notice was issued on 16th April, 2003 and the proceedings in the suit before the Small Causes Court have been stayed. On 23rd July, 2003 notice was again issued for the specific purpose of informing the parties that the matter shall be heard and finally disposed of at the stage of admission. The matter has been adjourned on several occasions and was called out again yesterday. Counsel appearing on behalf of the petitioners was heard. Counsel for the respondent was absent and the matter was accordingly directed to be placed for judgment today. However, Counsel appearing on behalf of the petitioners stated that he would personally inform the Advocate for the respondent so that if he desires to make any submissions before the dictation of the judgment commences this morning, he would be permitted to do so. Counsel for the petitioners has stated before the Court that he has personally informed the Advocate for the respondent that the matter is being again listed today on Board. Today when the matter has been called out, a rather unusual request has been made to the effect that the Court should not pronounce judgment today and the matter may be taken up on some other day when the Counsel for the respondent will make it convenient to attend the Court. I decline to adjourn the matter which has been heard yesterday and which has been listed again before the Court today.

(2.) THE petitioners filed a suit in the Court of Small Causes against the tenant, T. Mascarenhas which was decreed ex parts on 4/09/1987. In January, 1988 the respondent instituted a declaratory suit in the Court of small Causes. Summons in the suit was served upon the petitioners who have filed their written statement on 28/02/1994. Issues have been framed in the suit on 7/10/1995. The suit was dismissed some time in July, 2002, but has thereafter been restored. The examination-in-chief of the respondent was partly recorded on 30th December, 2002. On 14th January, 2003 an application was made by the respondent for an adjournment on the ground that the respondent had sustained a fracture of the left hip about three years ago and that she had been operated. The respondent stated that she had difficulty in walking. Subsequently, the suit was dismissed on 27th January, 2003, but came to be restored on an application made on the same day. On 6th march, 2003 an application was moved by the respondent to the effect that further examination-in-chief be recorded by the appointment of a Commissioner. That application has been allowed by the impugned order dated 10th March, 2002.

(3.) COUNSEL appearing on behalf of the petitioners stated before the Court that the petitioners do not challenge the appointment of a Commissioner for the purpose of recording evidence. However, it was urged that in view of the amended provisions of o. 18, r. 4 of the Code of Civil Procedure, 1908, modalities need to be laid down by the Court about the manner in which such matters should proceed. More specifically it has been urged before the Court that the trial Judge in the present case has merely directed that a Commissioner be appointed for recording evidence. Counsel submitted that it is necessary that an affidavit in lieu of the examination-in-chief of the respondent is filed before the Trial Court in compliance with the provisions of o. 18, r. 4 (1) and that the proof and admissibility of documents upon which reliance is sought to be placed in the course of the evidence is determined by the Court. The submission was that unless the question of proof and admissibility is determined, serious prejudice would be caused to the petitioners because the petitioners would then be required to cross-examine the respondent even in respect of documents which are not yet proved or which have not been held to be admissible in evidence.