Bombay High Court

NAVICHANDRA B. KOTHARI SINCE DECD. THR LEGAL HEIRSversusKUNDANMAL MANMAL RATANCHAND SINCE DECD. THR LEGAL HEIRS AND ORS

Decided: 10 September 2026
Disposal: Disposed Off

Holding

The High Court ordered the appointment of a new commissioner, directed the plaintiff to pay the commissioner’s fee as part of costs, and disposed of the writ petition.

Summary

The petition arose from a civil suit where the appointed court commissioner, aged over 80, refused to execute the commission for a fee of Rs.10,000. The plaintiff sought to increase the fee and to have the defendants share it, but the trial court held that only the plaintiff could be directed to pay as the commissioner was appointed at his instance. The parties then agreed to appoint a new commissioner, Mr. Pankaj Suresh Kowli, on the same terms except fee. The High Court ordered the new commissioner to record the cross‑examination within six weeks and directed the plaintiff to pay the commissioner’s fee, which would be treated as part of the suit costs. The petition was consequently disposed.

Issues considered

Whether the defendants can be directed to share the court commissioner’s fee when the commissioner is appointed at the plaintiff’s instance
Whether a new commissioner may be appointed when the originally appointed commissioner declines to execute the commission
Whether the plaintiff must pay the commissioner’s fee and whether such fee forms part of the suit costs

Subjects

court commissioner
commissioner fee
cross‑examination
civil suit
appointment of commissioner
costs

Judgment

                                                                      6-WP11833-2026.DOC

                                                                                 Santosh

                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CIVIL APPELLATE JURISDICTION


                                     WRIT PETITION NO. 11833 OF 2026

                      Navichandra B. Kothari (Since Deceased)
                      Through Legal Heirs                                 ...Petitioners
                                       Versus
                      Kundanmal Manmal Ratanchand (Since
                      Deceased) Through Legal Heirs And Ors             …Respondents

                      Mr. Bernardo Reis, i/b Siddharth Shenoy, for the Petitioners.
                      Mr. S. M. Khaire, for Respondent Nos.1(b)(c) and 2(b).

                                                    CORAM: N. J. JAMADAR, J.
SANTOSH                                             DATED: 10th SEPTEMBER, 2026
SUBHASH
KULKARNI
                      Oral Order:-
Digitally signed by
SANTOSH SUBHASH
KULKARNI
Date: 2026.09.11
10:55:33 +0530
                      1.   Heard the learned Counsel for the parties.


                      2.   The proceedings in SC Suit No.1338/1982 have reached a

                      stalemate as the learned Advocate who was appointed to record

                      the cross-examination of the plaintiffs witness, who is more

                      than 80 years of age, has purportedly declined to execute the

                      commission on the consolidated fess of Rs.10,000/- only,

                      ordered to be paid by the learned Judge, City Civil Court, on 7 th

                      October, 2025.


                      3.   The plaintiffs moved an application for enhancing the

                      Commissioner’s fee, and sharing the fees of the Court

                      Commissioner by the parties. By an order dated 10th December,
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                                               6-WP11833-2026.DOC

2025, the learned Judge rejected the application opining that

the Court has no objection if the plaintiff is willing to pay the

Commissioner’s fee at the rate of Rs.10,000/- per session.

However, the defendants cannot be directed to share the

Commissioner’s fee equally as the Commissioner was appointed

at the instance of the plaintiff.


4.    Mr. Reis, the learned Counsel for the petitioners, on

instructions, submits that, the Commissioner who has been

appointed by an order dated 7 th October, 2025 is not willing to

execute the commission, and another Commissioner may be

appointed. The learned Counsel for the respondents submits

that, the respondents – defendants are not averse to the

appointment of the another Commissioner to record the cross-

examination of the plaintiffs witness.


5.    With the consent of the Counsel for the parties, Advocate

Mr. Pankaj Suresh Kowli, is appointed as a Commissioner to

record the cross-examination of the plaintiffs witness on the

terms and conditions stipulated by the learned Judge, City Civil

Court, in the order dated 7th October, 2025, except the

Commissioner’s fee.


6.    The Commissioner is requested to execute the commission

and complete the exercise of recording the cross-examination of
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                                                   6-WP11833-2026.DOC

the plaintiffs witness within a period of six weeks from 16 th

September, 2026.


7.   The    parties   shall   co-operate    with      the    learned

Commissioner in the expeditious conclusion of the recording of

the cross-examination of the plaintiffs witness.


8.   The plaintiffs shall pay the Commissioner’s fee to Mr.

Pankaj Suresh Kowli, the newly appointed Commissioner for

recording cross-examination of the plaintiffs witness and the

fee shall form the part of costs in the suit, that shall abide the

final order that may be passed by the trial Court.


9.   The petition stands disposed.


                                           [N. J. JAMADAR, J.]




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