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Judgment
A.P. Lavande, J.—Rule. By consent of the learned Counsel for the parties heard forthwith.
By this petition under Article 227 of the Constitution of India, the Petitioner, who is original Defendant No. 1 in Special Civil Suit No. 5/1994/A pending before the Civil Judge, Senior Division, Vasco-da-Gama challenges the order dated 24th August, 2010 by which the application dated 21st August, 2010 (exhibit 191) for appointment of commissioner to record the evidence of Shri S. N. Naik-DW1 has been rejected.
During the course of the hearing Mr. Rao, learned 3 Counsel for the Petitioner submitted that the Petitioner would have no objection if the examination-in-chief of the witness is recorded in the Court and his cross-examination and re-examination, if any, is recorded in the office of the Commissioner to be appointed by the Court at Margao. Mr. Mascarenhas, learned Counsel for Respondent Nos. 1 to 5 and Mr. Menezes, learned Counsel for Respondent Nos. 6 to 9 fairly conceded that they will have no objection if this course is adopted and the impugned order is modified accordingly.
I am of the considered opinion that the submission made by Mr. Rao and concession by the learned Counsel for the Respondents, deserves to be accepted being fairly made.
In view of the above, the impugned order is partly set aside. The trial Court shall conduct the examination-in-chief of the witness Shri S. N. Naik in the Court and permit the cross-examination and re-examination, if any, before the Commissioner. The trial Court shall appoint the Commissioner and shall fix the fees payable to the Commissioner.
Interim order dated 20th September, 2010 stands vacated. Parties shall appear before the trial Court on 28th February, 2011 at 10.00 a.m.
Rule is made absolute in aforesaid terms with no order as to costs.