WPMS No.108 of 2007 Hon’ble Tarun Agarwala, J. Heard Mr. Piyush Garg, the learned counsel for the petitioner and Mr. Arvind Vashist, the learned counsel for the respondent. The petitioner is the plaintiff and has filed a suit for declaration of his title on the basis of a will. During the pendency of the proceedings, the plaintiff filed an application praying that he may be permitted to record the statement of an essential witness to the will, who is residing in Calcutta, through an Advocate Commissioner. This application was rejected by an order dated 06th January, 2007 against which the present writ petition has been filed. The writ petition was entertained and a final order was passed on 11th September, 2008 appointing an Advocate Commissioner to examine the witness at Calcutta. It transpires that the Advocate Commissioner examined the witness and submitted a report before the trial court. Now, a modification application has been filed praying that since the witness refused to sign the examination in chief, the same cannot be made part of the record of the trial court, and therefore, the plaintiff has prayed that a fresh commission be issued. In my view, no such application can be entertained afresh by way of a modification of the earlier order. If there is a defect in the examination in chief of the statement of the witness of the plaintiff, it would be open to the petitioner to file a fresh application for such purposes before the trial court. If such an application is moved, the trail court will decide the matter on merits. Modification Application is disposed of. (Tarun Agarwala, J.) Dated 15.07.2010 LSR