Bombay High Court
Sanj Dainik Lokopchar, An Evening ... vs Gokulchand Govindlal Sananda on 27 November, 2018
Author: Z.A. Haq
Bench: Z.A. Haq
1 wp8011.18
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.8011 OF 2018
(SANJ DAINIK LOKOPCHAR & OTH...VS.. GOKULCHAND GOVINDLAL SANANDA)
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Shri A.D.Bhate, Advocate for Petitioners.
CORAM : Z.A.HAQ, J.
DATED : NOVEMBER 27, 2018.
Heard.
By this petition, the original defendants have challenged the order passed by the learned trial Judge allowing the application (Exh.210) filed by the plaintiff under Order XXVI Rules 1 and 2 read with Section 151 of the Code of Civil Procedure and permitting recording of the evidence of the plaintiff on Commission.
The order is challenged on the ground that the learned trial Judge has allowed the application (Exh.210) without offering opportunity to the defendants to give their say and without hearing the defendant No.2 the application (Exh.210) is allowed on the ground that the plaintiff who claims to be aged about 84 years is not suffering from any ailment is fit to give evidence before the Court.
To support this submission, the petitioners/ defendants relied on their assertion that just few days after passing of the impugned orders the plaintiff attended Durga Festival. The defendants further claim that few months prior to moving of the application (Exh.210) the plaintiff attended ::: Uploaded on - 01/12/2018 ::: Downloaded on - 30/12/2018 09:31:37 ::: 2 wp8011.18 the Wrestling Competition as a Chief Guest and has lifted weight at the inaugural ceremony.
As far as the fist submission on behalf of the petitioners/defendants is concerned, I do not find any substance in it. The impugned order records that the advocate representing the defendant was present at the time of hearing of the application (Exh.210).
Be that as it may, instead of considering the technical ground, I opted to examine the matter on merits.
It is not disputed that the age of the plaintiff is around 80 years. It is not disputed that the about decades ago the plaintiff has undergone angioplasty. There may be dispute as to whether the plaintiff personally can peform the activities as normal person or not. It would not be possible to ascertain the exact degree of fitness of the plaintiff. However, considering the fact that the plaintiff is aged about 80 years and the admitted fact that he has undergone angioplasty, about a decade ago and as the holder of Power of Attorney of the plaintiff would be examined in Court, I am not inclined to interfere with the impugned order.
The writ petition is dismissed. No costs.
JUDGE RRaut..
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