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2022 DIGILAW 286 (GUJ)

MANBAI JUMA MAHESHWARI v. RAJESH SHIVJI THAKKAR

2022-02-15

ASHOKKUMAR C.JOSHI

body2022
JUDGMENT : ASHOKKUMAR C. JOSHI, J. 1. Rule. 2. This petition, under Articles 226 and 227 of the Constitution of India, is filed by the petitioner-original plaintiff praying for to issue writ of or in the nature of certiorari or any other appropriate writ, order or direction directing and quashing the order dated 06.10.2008 passed below Exh.24 in Regular Civil Suit No. 100 of 2012 by the learned 3rd Additional Senior Civil Judge, Gandhidham. By the said application, the petitioner-original plaintiff had requested for appointment of Court Commissioner, which came to be rejected as the learned advocate for the petitioner-plaintiff could not remain present. 3. Heard, learned advocate Mr. Jinesh Kapadia for the petitioner-original plaintiff and learned advocate Mr. Ankit Bachani for the respondent. 3.1 The learned advocate for the petitioner submitted that the petitioner-plaintiff, who is a senior citizen lady, has filed the captioned suit before the learned Civil Court concerned at Gandhidham-Kachchh for declaration and permanent injunction. The said suit is pending at the stage of cross-examination of the petitioner-plaintiff. That, since the petitioner-plaintiff is suffering from diabetes, hypertension and severe osteoarthritis, is unable to climb the stairs and accordingly, an application Exh.24 was filed by the petitioner with a request to appoint the Court Commissioner at the cost of the petitioner-plaintiff for cross-examination. During the hearing of the said application, since the learned advocate representing the petitioner-plaintiff could not remain present, the said application came to be rejected. He submitted that otherwise, the petitioner-plaintiff has also produced on record the medical certificate in support of her case. Accordingly, in the said set of facts and circumstances of the case, the learned advocate for the petitioner-plaintiff has urged that this petition may be allowed and the Court Commissioner, as requested for may be directed to be appointed at the cost of the petitioner-plaintiff. 4. As against this, learned advocate Mr. Ankit Y. Bachani for the respondent, while heavily opposing the petition and supporting the impugned order, submitted that the learned advocate for the petitioner-plaintiff did not remain present during the hearing of the said application. Besides, even on merits also, the said application is not tenable inasmuch as the ground mentioned appears to be not germane. Accordingly, he requested that this Court may not interfere in the impugned order and to dismiss this petition. 5. Besides, even on merits also, the said application is not tenable inasmuch as the ground mentioned appears to be not germane. Accordingly, he requested that this Court may not interfere in the impugned order and to dismiss this petition. 5. Regard being had to the submissions made and considering the material available on record, more particularly, perusing the copy of medical certificate at page 24 to this petition, it appears that the petitioner-plaintiff, who is a lady aged about 60 years, is suffering from diabetes, hypertension and severe osteoarthritis and is unable to climb the stairs. Besides, it is her suit and she is ready and willing to pay the cost for appointment of Court Commissioner. Further, in the considered opinion of this Court, such appointment has nothing to do with the merits of the suit, which may affect the rights of the defendant-respondent in any way and hence, this Court is of the opinion that ends of justice would meet if this petition is allowed, more particularly, when it is trite principle of law that justice should be done on merits rather than mere technicalities but for the inexcusable. 6. In the backdrop as aforesaid, this petition succeeds and is allowed accordingly. The impugned order dated 06.10.2008 passed below Exh.24 in Regular Civil Suit No. 100 of 2012 by the learned 3rd Additional Senior Civil Judge, Gandhidham is hereby set aside and the application Exh.24 is allowed. The learned trial Court concerned shall appoint a Court Commissioner as prayed for in the said application at the cost of the petitioner-plaintiff. Rule is made absolute accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs.