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$-19 HIGH COURT OF DELHI
FAO(OS) 568/2013
SHRI RAJKUMAR MALHOTRA Appellant
Through: Mr Kuljeet Rawal, Advocate.
FAO(OS) 568/2013
SHRI RAJKUMAR MALHOTRA Appellant
Through: Mr Kuljeet Rawal, Advocate.
VERSUS
SMT SUSHILA MALHOTRA & ORS Respondents
Through
Through
CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE VIBHU BAKHRU
06.12.2013
HON'BLE MR. JUSTICE VIBHU BAKHRU
06.12.2013
FAO(OS) 568/2013 & CM No.19437/2013 (Stay)
This appeal is directed against the order dated 01.11.2013 passed by a learned Single Judge of this Court in lA No.12700/2013, which was an application under Order 26 Rule 18(4) CPC. The respondent no.1/plaintiff no.l had filed the said application seeking appointment of a Local
Commissioner to record the evidence in the suit as also in the connected testamentary case no.47/2000. It has been noted in the impugned order that the respondent no.l/plaintiff no.l was aged 83 years and was suffering from several ailments and that the suit had been pending for about 13 years. The evidence was being recorded by the Joint Registrar but because of the fact that the Joint Registrar was over-burdened with work, the progress in recording the evidence was rather slow. The learned Single Judge also noted that there was no dispute that respondent no.l was an ailing aged person of 83 years and that the dispute was between her and her daughter on the one side and her son, who is appellantherein, on the" other side. It is also
2013:DHC:7348-DB noted that respondent no. 1/plaintiff no.l desired to see the end of Htigation during her lifetime and at the current pace, this looked like a remote possibility. It is in these circumstances that the application filed on behalfof respondent no.1/plaintiff no.l was allowed and the learned Single Judge exercised his discretion and appointed Shri R. K. Sharma, a former Senior
Additional District & Sessions Judge as the Local Commissioner to record the remaining cross-examination of PW Smt. Veena Rehan and also the remaining witnesses of the plaintiff as also those of the defendant in the suit as also in the testamentary case with the direction that endeavour would be made to complete the evidence of theparties in both the cases within a span of six months. The tentative fee of the Local Commissioner Was also fixed, being ?20,000/- per material witness and ^10,000/- per formal witness. The learned counsel for the appellant has also objected to the fee of ?10,000/- per formal witness being fixed on the ground that this was excessive as the foiiTial witnesses only had to produce some documents or record. In any event, we feel that no interference is called for even with regard to the fixation of the fees because in the impugned order itself, it is noted that the fee is only tentative and shall be finally determined at the conclusion of the evidence, depending on the amount of work undertaken by the Local
Commissioner. At this stage, the parties have beenrequired to deposit only a sum of ^50,000/- each with learned Local Commissioner as a provisional deposit.
We do not see, as to how the appellant has been prejudiced by this order. The endeavour of the learned Single Judge has been to hasten the trial ofthe suit as well as the testamentary case which have been pending for over a decade. This has been done keeping inmind that one ofthe parties is
•y an old person of 83 years of age and is also not keeping good health. The respondent no.1/plaintiff no.l is a senior citizen and it has been an endeavour of this Court to see that the cases of senior citizens and also women are fast tracked. Therefore, in these circumstances, no case has been made out by the appellant for interference with the impugned order. The appeal andthe pending application aredismissed. There shall beno order as to costs.
DECEMBER 06, 2013 MK BABAR DURREZ AHMED, J VIBHU BAKHRU, J
This appeal is directed against the order dated 01.11.2013 passed by a learned Single Judge of this Court in lA No.12700/2013, which was an application under Order 26 Rule 18(4) CPC. The respondent no.1/plaintiff no.l had filed the said application seeking appointment of a Local
Commissioner to record the evidence in the suit as also in the connected testamentary case no.47/2000. It has been noted in the impugned order that the respondent no.l/plaintiff no.l was aged 83 years and was suffering from several ailments and that the suit had been pending for about 13 years. The evidence was being recorded by the Joint Registrar but because of the fact that the Joint Registrar was over-burdened with work, the progress in recording the evidence was rather slow. The learned Single Judge also noted that there was no dispute that respondent no.l was an ailing aged person of 83 years and that the dispute was between her and her daughter on the one side and her son, who is appellantherein, on the" other side. It is also
2013:DHC:7348-DB noted that respondent no. 1/plaintiff no.l desired to see the end of Htigation during her lifetime and at the current pace, this looked like a remote possibility. It is in these circumstances that the application filed on behalfof respondent no.1/plaintiff no.l was allowed and the learned Single Judge exercised his discretion and appointed Shri R. K. Sharma, a former Senior
Additional District & Sessions Judge as the Local Commissioner to record the remaining cross-examination of PW Smt. Veena Rehan and also the remaining witnesses of the plaintiff as also those of the defendant in the suit as also in the testamentary case with the direction that endeavour would be made to complete the evidence of theparties in both the cases within a span of six months. The tentative fee of the Local Commissioner Was also fixed, being ?20,000/- per material witness and ^10,000/- per formal witness. The learned counsel for the appellant has also objected to the fee of ?10,000/- per formal witness being fixed on the ground that this was excessive as the foiiTial witnesses only had to produce some documents or record. In any event, we feel that no interference is called for even with regard to the fixation of the fees because in the impugned order itself, it is noted that the fee is only tentative and shall be finally determined at the conclusion of the evidence, depending on the amount of work undertaken by the Local
Commissioner. At this stage, the parties have beenrequired to deposit only a sum of ^50,000/- each with learned Local Commissioner as a provisional deposit.
We do not see, as to how the appellant has been prejudiced by this order. The endeavour of the learned Single Judge has been to hasten the trial ofthe suit as well as the testamentary case which have been pending for over a decade. This has been done keeping inmind that one ofthe parties is
•y an old person of 83 years of age and is also not keeping good health. The respondent no.1/plaintiff no.l is a senior citizen and it has been an endeavour of this Court to see that the cases of senior citizens and also women are fast tracked. Therefore, in these circumstances, no case has been made out by the appellant for interference with the impugned order. The appeal andthe pending application aredismissed. There shall beno order as to costs.
DECEMBER 06, 2013 MK BABAR DURREZ AHMED, J VIBHU BAKHRU, J
JUDGMENT