Rule.
Learned counsel Ms. Bhaya waives service. With the consent of both the sides, the matter is taken up for final hearing today.
1. This petition has been preferred against the orders passed by the learned 4th Addl. Sr. Civil Judge, Palanpur below application Exhibits-294 & 295 filed in Special Civil Suit No.127/1997 dated 16.11.2010 and further to direct the Court below to take on record the Affidavit of evidence dated 28.10.2010 of the petitioner by allowing application Exhibit-295.
2. The facts in brief are that respondent no.1 herein had filed Special Civil Suit No.127/1997 before the Court of learned Civil Judge, S.D., Palanpur for recovery of Rs.21,66,160.42 from the petitioner being the alleged unpaid dues towards electricity bills and interest thereon. In the said suit, the petitioner submitted his written statement cum counter claim of Rs.1,00,63,044/-. In 1994 proceedings were initiated before the B.I.F.R. in respect of the petitioner-Company and it culminated in the year 2007.
3. Thereafter, the petitioner submitted an application seeking permission of the trial Court to amend the written statement cum counter claim. However, the said application was rejected vide order dated 17.11.2009. Being aggrieved by the said order, the petitioner preferred Special Civil Application No.2042/2010 before this Court. The said petition came to be allowed vide order dated 13.05.2010.
4. Thereafter, on 16.11.2010 the petitioner tendered affidavit of evidence Exhibit-294 and application Exhibit-295 for appointment of Court Commissioner for cross-examination before the trial Court. However, both the applications came to be rejected by orders dated 16.11.2010. Against the said orders, the petitioner has preferred the present petition.
5. Heard learned counsel for the respective parties and perused the documents on record. The Affidavit of evidence Exhibit-294 was filed under Order 18 Rule 4 of C.P.C. The Court below rejected Exhibit-294 affidavit on the ground that it was not sworn before it but, was sworn before a Notary. However, considering the provisions of Section 139 r/w. Order 18 Rule 4 of C.P.C., an Affidavit of evidence can be sworn either in the Court or before a Notary. Hence, the Court below has erred in rejecting Exhibit-294 Affidavit.
6. So far as application Exhibit-295 seeking appointment of Court Commissioner for cross-examination is concerned, the said application has been rejected mainly on the ground that the case is ten years old and that a patient, even after having under Angioplasty, could travel and do his routines comfortably. In the application Exhibit-295, it has been categorically averred that the petitioner is 80 years of age and is residing in Mumbai. It is also averred that in the past he has suffered heart-attacks and that he has undergone Angioplasty on two different occasions and the last one being performed in April 2010. Considering the age of the petitioner and his physical condition, the Court below ought to have allowed the application Exhibit-295.
7. In view of the above discussion, the petition is allowed. The impugned orders passed below Exhibit-294 & 295 are quashed and set aside. The Affidavit of evidence Exhibit-294 is allowed. It shall be treated as one filed under Order 18 Rule 4 of C.P.C. and shall taken on record, subject to the right of cross-examination by the other side. The Exhibit-295 application is allowed and the Court below is directed to appoint a Court Commissioner, as prayed for in the said application. However, the expenses of the Court Commissioner as also the expenses of the Officer and Lawyer of the respondent-Company, who shall travel to Mumbai from Palanpur, shall be borne by the petitioner. The petition stands disposed of accordingly. Rule is made absolute.
[K.
S. JHAVERI, J.] Pravin/* Top