THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR CIVIL REVISION PETITION No.4098 OF 2011 Dated 2-12-2011 Between: Badiya Mohana Rao. ..Petitioner. And: Paila Tulasamma. …Respondents. THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR CIVIL REVISION PETITION No.4098 OF 2011 ORDER: This revision is directed against the order dated 4-7- 2011 in I.A.No.192 of 2011 in O.S.No.22 of 1999 passed by the learned Senior Civil Judge, Sompeta whereby and whereunder an application filed by the petitioner to appoint an advocate commissioner to record the evidence of D.Ws.1 and 2 on commission has been dismissed. Petitioner herein is the defendant and respondent herein is the plaintiff. The parties herein will be referred to as arrayed before the lower Court for the sake of convenience. The brief facts are as follows: The plaintiff and one P. Jaggaya are the children of P. Simmayya who died in the year 1961. The plaintiff’s mother died few years after the death of her husband P.Simmaya. Her brother P.Jagayya inherited plaint A.schedule property from his mother and subsequently, he purchased some lands. The defendant has nothing to do with the family of Jaggayya. However, he alleged that late P. Jaggayya executed a will in his favour. Thus, the main dispute between the parties is whether Jaggayya executed a will in favour of the defendant or not. The plaintiff filed the suit for recovery of A and B Schedule properties. The defendant seems to have disputed the relationship of the plaintiff with P. Jagayya and his main contention is that the properties are the self acquired properties of P.Jagayya. Papamma is the wife of Jaggayya. The defendant is the son of the sister of Papamma. The specific case of the defendant is that he was brought up by Jaggayya and Jaggayya executed a will in his favour. It appears that on behalf of the plaintiff, P.Ws.1 and 2 were examined and plaintiff side evidence was closed. On behalf of the defendants, D.W.1 was examined in chief on 23-11-2010 and D.W.2-A.Umapathi Reddy was examined in chief on 20-12-2010. The case was coming up for cross-examination of D.Ws.1 and 2. It appears that the plaintiff wanted to cross-examine both the witnesses on the same day. As things stood thus, the defendant filed an application on 25-4-2011 to appoint an Advocate commissioner for recording evidence of himself and D.W.2 at his residence i.e., Loddaputii village, Ichapuram Tahsil, Srikakulam District. His main case is that D.W.2 is unable to appear before the Court to give evidence due to sickness. A detailed counter was filed by the plaintiff denying the contentions of the defendant. Subsequently, the defendant filed a memo along with xerox copies of medical certificates in support of his contention that D.W.2 had underwent treatment in R.K..Hospital, Gajuwaka, Visakhapatnam. The lower Court relying on the judgment of this Court reported in D.CHENDRAKALA AND OTHERS v. SRI MATASHRAMA SEVA SANGHAM, KAKINADA ([1]) observed that it is a fit case where both the chief examination and cross examination of the witnesses to be examined in connection with the proof of the disputed will has to be recorded by the Court in the Court hall. Heard the arguments. Learned counsel for the defendant Sri K.Manik Prabhu submits that the defendant has filed medical record to show that D.W.2 fell sick and that he is suffering with throat infection and he is not vocal and therefore, the defendant filed the present application seeking to appoint an advocate commissioner and the lower Court ought to have appointed the advocate commissioner to record the evidence of D.Ws.1 and 2. In support of his contention, he relied on a decision reported in V.K.CHANDRASEKHAR Vs. V.K.SUSEELAMMA ([2]). Learned counsel for the respondent/plaintiff submits that originally, the suit was filed in the year 1999 and that the proof of will said to be executed by Jagayya is involved and that when a serious dispute is there, it is always better to examine the witness in the public Court itself and then, the Court will have an opportunity to see the demeanor of the witnesses and in the above circumstances, lower Court rightly rejected the application. The only point that falls for consideration is whether the order of the lower Court is sustainable in the facts and circumstances of the case? It is also necessary to refer order 26 and Rule 4 C.P.C. which reads as follows: “4 (1) Any Court may in any suit issue a commission—for the examination on interrogation or otherwise. (a) any person resident beyond the local limits of its jurisdiction; (b) any person who is about to leave such limits before the date on which he is required to be examined in Court; and (c) any person in the service of the Government who cannot, in the opinion of the Court, attend without detriment to the public service. (Provided that where, under Rule 19 of Order XVI, a person cannot be ordered to attend a Court in person, a commission shall be issued for his examination if his evidence is considered necessary in the interests of justice: Provided further that a commission for examination of such person on interrogatories shall not be issued unless the Court, for reasons to be recorded, thinks it necessary so to do.) (2) Such commission may be issued to any Court, not being a High Court, within the local limits of whose jurisdiction such person resides, or to any pleader or other person whom the Court issuing the commission may appoint. (3) The Court on issuing any commission under this rule shall direct whether the commission shall be returned to itself or to any subordinate Court. 4-A. Notwithstanding anything contained in these rules, any court may, in the interest of justice or for the expeditious disposal of the case or for any other reason, issue commission in any suit for the examination, on interrogatories or otherwise, of any person resident within the local limits of its jurisdiction, and the evidence so recorded shall be read in evidence.” It is not in dispute that both D.Ws.1 and 2 are residents within the local limits of jurisdiction of the court below. In the 1st cited decision relied on by the trial Court, this Court had an occasion to consider similar provision. The another relevant provision under Order 18 Rule 4 which is as follows: “4.(1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence.” Learned counsel for the defendant has relied on a decision 2nd cited. It was a suit for specific performance of the agreement of sale allegedly executed by the 1st defendant. Pending the suit, the 1st defendant died and thereafter, the respondents 3 and 4 were brought on record as legal representatives of the deceased 1st defendant. Defendants 2 to 4 filed an application to appoint an advocate commissioner to record the evidence of attestors of the will said to have been executed by their deceased mother. It was their case that attestors become old and they were unable to come to the Court for the purpose of giving evidence. The application was allowed by the lower Court challenging the same, the revision therein was filed. It was mainly contended in the said decision that the suit is based on agreement of sale executed by the 1st defendant. Therefore, it was held that the validity or otherwise of the will need not be gone into. More over, there was no issue with regard to the proof of the alleged will in that case. It appears that it is the discretion of the Court either to appoint an advocate Commissioner or to examine the witnesses in the Court itself. In this case, admittedly, the lower Court has examined D.Ws.1 and 2 in the chief and subsequently, then it appears that D.W.2 fell sick. As far as the medical report is concerned, it appears that D.W.2 had taken treatment from 11-3-2011 to 24-4-2011. Though the report of the hospital is filed, no certificate issued by any competent doctor showing the present condition of health is filed. It appears that the treatment of D.W.2 was only in April, 2011 and now we are in December, 2011. Where in a case, a serious dispute is there and the whole case depends on the evidence of the material witnesses, for example, an attesting witness of a will which is seriously disputed, it is always better to get the witnesses examined by the Court in the Court itself. The Court will have an opportunity to observe the demeanor of the witnesses. Moreover, it appears that having regard to the facts and circumstances of the case, the trial Court has to exercise its jurisdiction. Once the trial Court has exercised its jurisdiction, normally, it is not desirable to interfere with the discretion exercised by the lower Court. Having regard to the facts and circumstances of the case, I do not see any reason to interfere with the order impugned. Accordingly, this Civil Revision Petition is dismissed. ___________________ B. CHANDRA KUMAR, J. Date: 2-12-2011 Dvs THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR CIVIL REVISION PETITION No.4098 OF 2011 Dated 2-12-2011 [1] 2007 (1) ALT 230 [2] 2010-ALT-2-30