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Judgment
Mr. Virendra Sahekar, learned Advocate for the Applicants, at the outset submits that the Order dated 18.11.2025, questioned in the present proceedings, rejected the Applicants' request for the appointment of a Court Commissioner to record evidence. He submits that the proper remedy to challenge the Order dated 18.11.2025 would be a Writ Petition. He therefore seeks leave to convert this Civil Revision Application into a Writ Petition. This request, made by Mr. Virendra Sahekar, learned Advocate for the Applicants, is not opposed by Mr. Ganpat Bhalkar, learned Advocate for the Respondents. In view of the no objection, leave is granted to convert this Civil Revision Application into a Writ Petition. The Registry is to take appropriate steps.
Mr. Virendra Sahekar, learned Advocate for the Petitioners, undertakes to take all steps before the Registry required for conversion of this Civil Revision Application into a Writ Petition. He submits that the subject matter of this proceeding is urgent, involving Senior citizens aged 82 and 80 years, respectively and therefore requests that this Petition be taken up today itself. At the request of Mr. Virendra Sahekar, learned Advocate for the Petitioners and with the consent of Mr. Ganpat Bhalkar, learned Advocate for the Respondents, this Petition is taken up.
By the present petition, the Petitioners are before this Court assailing the Order dated 18.11.2025 passed by the Civil Judge, Senior Division, Kolhapur (“Trial Court”), by which the Application filed by the Petitioners at Exhibit 117 in Regular Civil Suit No. 217 of 2012 is rejected (“impugned order”).
Rule. Rule made returnable forthwith and heard finally with the consent of the parties.
Petitioners are Plaintiffs, whereas the Respondents are Defendants in Regular Civil Suit No. 217 of 2012. Upon commencement of Trial, Petitioner No. 2 filed an Affidavit in lieu of evidence.
Petitioners are senior citizens.
On 18.11.2025, the Petitioners filed an Application at Exhibit 117 under Order XXVI Rule 1 and Rules 15 of CPC, seeking the appointment of a Court Commissioner to record the evidence/cross-examination of Petitioner No. 2. The Trial Court found no merit in the Application at Exhibit 117 and rejected it by the impugned order.
Mr. Virendra Sahekar, learned Advocate for the Petitioners, submits that the Petitioners have made out a case for consideration of the request in the Application at Exhibit 117. He further submits that no prejudice will be caused to the Respondents if the Petitioners' evidence is recorded by the Court Commissioner.
Mr. Virendra Sahekar, learned Advocate for the Petitioners, submits that the trial has not progressed beyond the stage it was at on the date of the passing of the impugned order.
Mr. Ganpat Bhalkar, learned Advocate for the Respondents, submits that Petitioner No. 2, being 80 years of age, has no objection to the appointment of a Court Commissioner to record the examination of Petitioner No. 2, subject to the costs being borne by the Petitioners.
Mr. Virendra Sahekar, learned Advocate for the Petitioners, states that the Court Commissioner be appointed from the panel and that the Petitioners shall bear the entire fees and costs of the Court Commissioner.
Perused the records.
The Trial Court rejected the Application at Exhibit 117 in Regular Civil Suit No. 217 of 2012, essentially on the ground that the Petitioners failed to produce any medical evidence to show that Petitioner No. 2 is unable to attend Court to testify in the case.
Be that as it may, Petitioner No. 2, who has filed the affidavit in evidence and is to enter the witness box, is 80 years of age, a fact not disputed by the Respondents. The Application at Exhibit 117 states that Petitioner No. 2 has a health-related issue (Lumbar Orthosis). This alone warrants the appointment of a Court Commissioner, as requested in Application Exhibit 117 in Regular Civil Suit No. 217 of 2012.
The Respondents do not object to the recording of evidence before the Court Commissioner.
In view of the above, the impugned order is quashed and set aside. Consequently, subject to payment of costs of Rs. 10,000/-, by the Petitioners to the Respondents, as a condition precedent, the Application at Exhibit 117 filed by the Petitioners in Regular Civil Suit No. 217 of 2012 is allowed.
Mr. Virendra Sahekar, learned Advocate for the Applicant, states that the cost of Rs. 10,000/- would be paid to the Respondents within two (2) weeks from today.
If the Petitioners pay the costs of Rs. 10,000/- within the period requested and produce proof of payment before the Trial Court in Regular Civil Suit No. 217 of 2012, the Trial Court is directed to appoint a Court Commissioner, as per the Rules, to record the Petitioners’ evidence. The Petitioners shall bear all costs and fees of the Commission.
Mr. Virendra Sahekar, learned Advocate for the Petitioners and Mr. Ganpat Bhalkar, learned Advocate for the Respondents, state that the parties to the Regular Civil Suit No. 217 of 2012 shall cooperate with the Court Commissioner.
Rule made absolute in the above terms.
This Petition is disposed of.