1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION NMT/141/2009 IN TESTAMENTARY SUIT NO.44 OF 1983 IN TESTAMENTARY PETITION NO.37 OF 1982 Panna Atmaram Bhansali ...Plaintiff. Vs. Tinoo M. Bhansali & anr. ...Defendants Ms.Geeta Shastri for the applicant/defendants. Mr.Santosh Raje for the respondents/plaintiff. CORAM :- ANOOP V. MOHTA, J. DATED :- 3rd November, 2009. P.C.- 1 Respondent no.1/defendant no.1 has taken out this Notice of Motion to re-call/modify the order dated 28th July, 2009 by which this Court has ordered to record the remaining evidence in the form of cross-examination through the Commissioner. 2 Considering the averments made and as there are other witnesses need to be examined and as no sufficient/apparent reason is made out to review the order dated 289th July, 2009, I am rejecting this Notice of Motion as no case is made out to review the same. 2 3 Apart from this, on 6th October, 2009 in Testamentary Suit No. 13/94 in Testamentary Petition No.610/93-Harish V. Kulkarni & anr. v. Pradeep M. Sabnis, considering the various facts, including the recording of evidence through the Commissioner and only in exceptional cases by the Court, I have already referred the matter to a Larger Bench. Therefore also no reason to interfere with the said oder. 4 By this time, the Commissioner could have recorded the evidence, but for the reason mentioned in the affidavit, the matter could not be proceeded before the Commissioner. The persons who are interested in early disposal of the matter, the recording of evidence through the Commissioner is an effective step which, in my view, just cannot be overlooked merely because the party insists that the evidence should be recorded in the Court. The parties have a right to record the evidence as per the Code of Civil Procedure, but they have no right to insist that only the Court should record the evidence, in all and every matter, specially after the (2002) amendment to the Code of Civil Procedure. 5 In view of this, the Notice of Motion is dismissed. 6 However, I do not deny the right of the parties to settle the mater at any point of time. 7 The Commissioner so appointed in a given case may consider to charge reasonable amount as one of the party may not be in a position to pay above the reasonable amount. The Court cannot compel the 3 Commissioner to charge the fixed amount but in a given case, for that reason itself, the matter could not be halted further. The parties can pursue the Commissioner to charge reasonable amount only if the reason is genuine and bonafide. 8 The time is extended for the Commissioner’s report for four weeks from today. (ANOOP V. MOHTA, J.)