JUDGMENT 1. Heard learned advocate Mr. Dhaval D. Vyas for the petitioners – original defendant Nos.4 and 5 and learned senior advocate Mr. R.R. Marshal with learned advocate Mr. Arpit A. Kapadia for respondent No.5 – original defendant No.1. It is pertinent to note that respondent No.5 – original defendant No.1 has filed caveat and accordingly, learned senior advocate is present before this Court on his behalf. Learned senior advocate has declared that parties of the partition suit i.e. Special Civil Suit No.218 of 2005 are as such family members of one family in which respondent No.5 is the head of the family. So far as this petition is concerned, the dispute involved related to Exh.252 is between the petitioners and respondent No.1 and as such respondent Nos.1 to 4 - original plaintiff Nos.1 to 4 have no objection if Exh.252 should be allowed and as such, the same has been allowed by the Court concerned and the petitioners are challenging the said order dated 20.4.2013 passed below Exh.252 by the court of Additional Senior Civil Judge, Surat by preferring the present Special Civil Application. In the above circumstances, this Court has heard the above referred advocates for the petitioners and respondent No.5. 2. Exh.252 is the application dated 21.3.2013 filed by the respondent No.5 – original defendant No.1 under Order XVIII, Rule 16 of the Code of Civil Procedure, 1908 (for short “the Code”) and has sought relief to record his evidence urgently mainly on the ground of age factor, he being 88 years old and more particularly as narrated in the said application. The respondent Nos.1 to 4 – original plaintiff Nos.1 to 4 have filed the suit for declaration of 1/4th share in the property mentioned in the said suit along with consequential relief with respect to the suit property. It is the case of the petitioners – original defendant Nos.4 and 5 that the properties mentioned in the suit are self acquired properties. It is not in dispute that hearing of the injunction application is pending and the same was to be taken up for disposal. 3. It is the case of the petitioners – original defendant Nos.4 and 5 that the properties mentioned in the suit are self acquired properties. It is not in dispute that hearing of the injunction application is pending and the same was to be taken up for disposal. 3. Learned advocate for the petitioners has submitted that to delay the hearing of Exh.5 in Special Civil Suit No.218 of 2005, novel and ingenuine method has been adopted by the respondent No.5–original defendant No.1 acting in support of the plaintiffs and submitted the application at Exh.252 under Order XVIII, Rule 16 of the Code stating that he has attained the age of 88 years and with his vision for life, there is urgency for having his evidence recorded. He has then submitted that as such no ailment is stated in the application at Exh.252 and there has been no medical history of the major ailment in the past eight years i.e. after filing of Special Civil Suit No.218 of 2005. The consequence of the impugned order would definitely delay the hearing of Exh.5 injunction application. Lastly, learned advocate for the petitioners has submitted that except mentioning the age of 88 years, no evidence is placed on record for the Court consideration to show that the health of respondent No.5 – defendant No.1 was in such bad shape which requires immediate order under Order XVIII, Rule 16 of the Code, more particularly, when the issues are yet not framed and as such hearing of Exh.5 is pending. He has put reliance on the latest decision dated 29.1.2013 of the Apex Court in the case of Laxmibai (Dead) Thru Lr’S. & Anr Vs Bhagwanthbuva (Dead) Thru Lr’S. Relevant portion of paragraph 28 on which learned advocate for the petitioners has put reliance reads as under. He has put reliance on the latest decision dated 29.1.2013 of the Apex Court in the case of Laxmibai (Dead) Thru Lr’S. & Anr Vs Bhagwanthbuva (Dead) Thru Lr’S. Relevant portion of paragraph 28 on which learned advocate for the petitioners has put reliance reads as under. “.....The appellate courts adopted a rather unusual course, and drew adverse inference on the basis of the non-examination of the appellant/plaintiff, Smt. Laxmibai, observing that considering her old age, she could have taken recourse to the procedure, prescribed under Order XVIII Rule 16, Code of Civil Procedure, 1908, which lays down, that where a witness is about to leave the jurisdiction of the court, or where some other sufficient cause is shown to the court owing to which it would be prudent for it to ensure that his evidence is taken immediately, the court may, upon the application of the party or of the witness at any time after the institution of the suit, take the evidence of such witness/party, in the manner provided therein. The appellant was just above 70 years of age and hale and hearty. She was not suffering from any serious ailment e.g. cancer or has been on death bed. Thus, there was no occasion for her to file an application under Order XVIII Rule 16 CPC which provides for taking evidence De Bene Esse for recording statement prior to the commencement of the trial. Mere apprehension of death of a witness cannot be a sufficient cause for immediate examination of a witness. Apprehension of a death applies to each and every witness, he or she, young or old, as nobody knows what will happen at the next moment. More so, it is the discretion of the court to come to a conclusion as to whether there is a sufficient cause or not to examine the witness immediately. We are of the view that had Smt. Laxmibai moved such an application, the trial court could not have allowed it after considering the aforesaid facts.” 4. More so, it is the discretion of the court to come to a conclusion as to whether there is a sufficient cause or not to examine the witness immediately. We are of the view that had Smt. Laxmibai moved such an application, the trial court could not have allowed it after considering the aforesaid facts.” 4. Learned senior advocate for respondent No.5 – original defendant No.1 has submitted that referring to Order XVIII, Rule 16 of the Code, it is clear that if the party to the suit convinces the Court that the witness is about to leave jurisdiction of the Court i.e. there is all probabilities of his not getting examination immediately, it is open for the Court to examine such witness out of turn. When the respondent No.5 herein though not mentioned that he is suffering with any major ailment has filed the application Exh.252 with prayer and submission that he is of 88 years and he is about to leave universe i.e. he apprehends of on coming death at any time i.e. the said apprehension in the mind of respondent No.5 should be considered as genuine one and as such, it is sufficient cause and by getting satisfaction, the Court has allowed the application at Exh.252 and in that circumstances, this Court should not interfere while exercise of the powers under Article 226/227 of the Constitution. 5. I have considered the above referred rival submissions made by learned advocates for the parties. 6. Referring the averments of the petition and as argued by learned advocate for the petitioners, it is the fact that after filing of Special Civil Suit No.218 of 2005, since last 8 years, it is pending for hearing of Exh.5 injunction application. It is not in dispute that respondent No.5 is 88 years old. It is pertinent to note that Special Civil Suit No.218 of 2005 is for partition of the suit property and for rendition of accounts. The respondent No.5 is the head of the family. This Court cannot ignore the ground reality that considering various factors, trial will definitely take good time to reach at the stage of recording of evidence of respondent No.5 – original defendant No.1. The observations made by the trial Court in paragraph 8 of the impugned order reads as under. The respondent No.5 is the head of the family. This Court cannot ignore the ground reality that considering various factors, trial will definitely take good time to reach at the stage of recording of evidence of respondent No.5 – original defendant No.1. The observations made by the trial Court in paragraph 8 of the impugned order reads as under. “It is further true that the apprehension of death is common for everyone whether he is young or old but the apprehension of death is much stronger for the persons who are old one. Therefore, in the present case also the apprehension of death or incapability of tendering the evidence by defendant no.1 is not baseless but it is more certain when his age is 88. Moreover, all the defendants in the present suit, have already filed their written statement. Being so, the case of the plaintiff is well known to the defendants, so also the case of the defendants is known to the plaintiff. Further it is provided in the provision itself that such advance evidence can be read at the time when the suit reaches to that particular stage, therefore at this stage if the evidence of defendant no.1 taken, it will not prejudice the rights of any parties because it will not read in evidence immediately.” 7. It is important to note that after allowing the application Exh.252 vide impugned order, the trial Court has taken care by clarifying that such evidence to be recorded of defendant No.1 would not be read in as evidence at the time of hearing of any interim application and thus, I am of the view that it will not prejudice the rights of the parties because it will not read in as evidence immediately. Considering advance age, in my view, the trial Court has passed the balanced order which appears just and proper. 8. I have carefully gone through the entire paragraph 28 of the above referred judgment of the Apex Court relied upon by the petitioners. Referring the same, it appears that after considering ample evidence on record to prove occurrence of giving and taking ceremony related to adopted child, the trial Court has found the same to be valid ceremony. 8. I have carefully gone through the entire paragraph 28 of the above referred judgment of the Apex Court relied upon by the petitioners. Referring the same, it appears that after considering ample evidence on record to prove occurrence of giving and taking ceremony related to adopted child, the trial Court has found the same to be valid ceremony. Such document was discarded by the appellate court by adopting rather unusual course and drawn adverse inference on the basis of the non-examination of the appellant/plaintiff Smt. Laxmibai, observing that considering her old age, she could have taken recourse to the procedure prescribed under Order XVIII Rule 16 of the Code. Hence, the Honourable Apex Court has observed that Smt. Laxmibai was just above 70 years of age and hale and hearty and was not suffering from any serious ailment i.e. cancer or has been on death bed and further come to the conclusion that had Smt. Laxmibai moved with such application, the trial Court could not have allowed it after considering the above facts. In my opinion, the judgment of the Apex Court will not render any help to the petitioners. On the contrary, it will definitely help respondent No.5 herein because in the case on hand, respondent No.5 – original defendant No.1 is 88 years of age and though not suffering with major ailment, he has reasonably expressed apprehension of leaving this universe i.e. his non-availability by the time the suit reaches at the stage of recording of evidence and more particularly after considering the said facts, the trial Court has exercised its discretion to come to the conclusion that there is sufficient cause to examine respondent No.5 – original defendant No.1 immediately. 9. In the result, the petition fails and the same is dismissed with no order as to costs. Petition dismissed.