* THE HON’BLE Ms. JUSTICE G. ROHINI + CIVIL REVISION PETITION No.5248 OF 2009 % 01/12/2009 # V. K. Chandrasekhar … Petitioner Vs. $ 1. V. K. Suseelamma (died), rep. by L.Rs. 2 to 4. … Respondents < Gist > Head Note: ! Counsel for the petitioner : Sri K. Maheswara Rao ^ Counsel for the respondents: -- Cases referred : [1] (2005) 6 SCC 733 2 AIR 2008 SC 2134 THE HON’BLE Ms. JUSTICE G. ROHINI CIVIL REVISION PETITION No.5248 OF 2009 Dated: 01.12.2009 Between: V. K. Chandrasekhar … Revision petitioner And 1. V. K. Suseelamma (died), rep. by L.Rs. 2 to 4. … Respondents THE HON’BLE Ms. JUSTICE G. ROHINI CIVIL REVISION PETITION No.5248 OF 2009 ORDER: The petitioner herein is the plaintiff in O.S.No.36 of 2001 on the file of the Court of the Additional Senior Civil Judge, Anantapur. The suit is filed for specific performance of the agreement of sale dated 30.12.1995 allegedly executed by the 1st defendant / 1st respondent herein. Pending the suit, the 1st defendant died and thereafter the respondents 3 & 4 have been brought on record as legal representatives of the deceased 1st defendant. The 2nd defendant, who is already on record, has also been declared as the legal representative of the deceased 1st defendant. Thereafter, the defendants 2 to 4 filed I.A.No.825 of 2008 under Order 26 Rule 9 of C.P.C. to appoint an Advocate-Commissioner to record the evidence of the attestors of the will dated 15.09.1999 allegedly executed by their deceased mother. It is stated that the attestors have become old and they are unable to come to Anantapur for the purpose of giving evidence and therefore a Commissioner may be appointed to record their evidence at Tirupati. The said application was opposed by the plaintiff contending that the will dated 15.09.1999 is a fabricated document and therefore it is unenforceable. It is also contended that the examination of attestors of the said will is unnecessary and not relevant for adjudication of the case and as a matter of fact the application is made only to delay the suit proceedings. The Court below by order dated 6.1.2009 allowed I.A.No.825 of 2008 and appointed an Advocate-Commissioner to record the evidence of the witness at Tirupati making it clear that the Commissioner’s fee and the other expenses including the expenses incurred by the plaintiff to go to Tirupati along with his advocate to cross-examine the witnesses shall be borne by the applicants/defendants 2 to 4. The said order is challenged in this Revision Petition contending inter alia that since the suit is based on the agreement of sale executed by the 1st defendant, the validity or otherwise of the alleged will in favour of the defendants 2 to 4 cannot be gone into. It is also contended that since there is no issue with regard to the proof of the alleged will, the Court below committed a grave error in allowing the application and appointing the Commissioner to record the evidence of the attestors of the said will as sought by the defendants. I have heard the learned counsel for the petitioner and perused the material on record. At the outset, it is to be noticed that in the written statement filed by the 2nd defendant, it was specifically pleaded that the 1st defendant executed a will dated 15.09.1999 bequeathing her properties in favour of defendants 2 to 4. The suit agreement dated 30.12.1995 has been disputed by the 1st defendant in the written statement filed by her during her lifetime and it was contended that the suit agreement was fabricated and forged with a mala fide intention to grab the suit property. Admittedly the defendants 2 to 4 are claiming right and title over the suit schedule property by virtue of the alleged will executed by their mother dated 15.09.1999. To substantiate the title claimed by them, they wanted to examine the attestors of the will dated 15.09.1999. The present application is filed for appointment of a Commissioner to record the evidence of the said witnesses which is permissible under Order 26 Rule 1 of C.P.C. if the Court is satisfied that the witness who on account of illness or infirmity is unable to attend the Court. It is pleaded by the defendants 2 to 4 that the attestors of the will dated 15.09.1999 have become old and are unable to attend the Court to give evidence. The plaintiff in his counter did not specifically dispute the said plea but only contended that the inability of the witnesses has not been certified by a competent authority and that the examination of the said witnesses is not relevant for adjudication of the issue in question. The Court below having been satisfied with the reasons given by the applicants for appointing a Commissioner thought it fit to allow the application making it clear that the Commissioner’s fee and the other expenses including the expenses incurred by the plaintiff to go to Tirupati along with his advocate to cross-examine the witnesses shall be borne by the applicants/defendants 2 to 4. I do not find any justifiable reason to hold that the said order passed by the Court suffers from any legal error warranting interference by this Court. Merely because the plaintiff raised an objection that no medical certificate is produced to substantiate the inability of the witnesses to attend the Court to give evidence, the plea of the applicants need not be disbelieved and on that ground the Court below cannot be said to have committed any illegality in allowing the application. The other contention raised by the plaintiff / Revision petitioner that the genuineness of the will need not be gone into in the present suit deserves no consideration at this stage. So far as the present application is concerned, it is only for appointment of Commissioner to record the evidence and the same has been rightly allowed by the Court below in exercise of the powers conferred under law. It is not necessary at this stage to go into the question whether by virtue of the rights and title claimed by the defendants 2 to 4 on the basis of the alleged will would convert the suit into a suit for title and possession. The decisions of Supreme Court in KASTURI v. IYYAMPERUMAL[1] and BHARAT KARSONDAS THAKKAR v. M/s. KIRAN CONSTRUCTION CO. AND ORS.[2] relied upon by the learned counsel for the petitioner are distinguishable on facts and have no application for the purpose of deciding the issue involved in the present Revision petition. For the aforesaid reasons, the Civil Revision Petition is devoid of any merit and the same is accordingly dismissed. No costs. ____________ G. ROHINI, J. Dt. 01.12.2009 gbs [1] (2005) 6 SCC 733 [2] AIR 2008 SC 2134