HON’BLE SRI JUSTICE V.ESWARAIAH C.R.P.NO.3369 OF 2010 Dt.6.8.2010 Between: K.Doraswamy Reddy ..Petitioner And K.Radhamma and another ..Respondents HON’BLE SRI JUSTICE V.ESWARAIAH C.R.P.NO.3369 OF 2010 ORDER: This civil revision petition is directed against the order passed by the Principal Junior Civil Judge, Chittoor, in I.A.No.131 of 2010 in O.S.No.500 of 2007, dated 20.4.2010. Petitioner herein is defendant No.1 in the suit O.S.No.500 of 2007 on the file of the Principal Junior Civil Judge, Chittoor, seeking for permanent injunction. The said suit appears to have filed claiming right through the will said to have been executed in favour of the plaintiff and that the defendants have no right whatsoever. The defendants disputing the execution of the said will. The 1st respondent – plaintiff filed a petition in I.A.No.131 of 2010 under Order 26, Rule 9 C.P.C., to appoint advocate commissioner for recording the cross examination of P.W.3, who is attestor of the will dated 10.5.1972. The said attestor of the will filed his chief affidavit. It is stated that P.W.3 is aged about 70 years and the chief examination of the affidavit was filed on 7.2.2010 and at that time he was hale and healthy and he was able to attend the office of the advocate to sign the chief affidavit. But, his health is deteriorated subsequently and he is unable to move and confined to bed. Therefore, for the purpose of recording his cross-examination the said application was filed for appointment of advocate commissioner. The said application was resisted by the petitioner herein, who is defendant No.1, disputing the signatures of the said witness P.W.3 and no medical certificate is filed in proof of the allegations and further if he is cross examined in the court his demeanor will be observed and therefore he is liable to appear before the court. It is also stated that when P.W.3 was able to appear in the office of the counsel for the plaintiff at the time of preparation of the chief affidavit, nothing prevented for the witness to appear before the court for the purpose of cross-examination. The said application was allowed by order, dated 20.4.2010. Aggrieved by the same this civil revision petitioner is filed under Article 227 of the Constitution of India contending that the said application filed under Order 26 Rule 9 C.P.C is not maintainable and Order 26 Rule 9 C.P.C relates to the appointment of commissions to make local investigations and the appropriate provision is under Order 26, Rule 1 C.P.C with regard to the appointment of advocate commission to examine the witnesses, who were suffering sickness or infirmity and unable to attend the court. Under Order 26, Rule 2 C.P.C an order for the issue of a commission for the examination of a witness may be made by the Court either on its own or on application, supported by affidavit or otherwise, of any party to the suit. Therefore, the appropriate provision applicable is under Order 26 Rule 2 C.P.C. In view of the said provision, I do not see any merit in the civil revision petition. The civil revision petition is accordingly dismissed. ________________ V.ESWARAIAH, J. 6.8.2010 kpr