Andhra HC (Pre-Telangana)
D. Chendrakala And Ors. vs Matashrama Seva Sangam on 17 October, 2006
Equivalent citations: 2007(1)ALD121, AIR 2007 (NOC) 501 (A. P.)
ORDER C.Y. Somayajulu, J.
1. In a suit filed by the respondent for declaration of title and for other consequential reliefs in respect of the immovable property said to have been bequeathed to it under a Will said to have been executed by the father of the revision petitioners, respondent filed a petition under Order 26 Rule 10B read with Section 151 CPC to appoint a Commissioner to record the evidence of the scribe and attestors of the Will relied on by it at their residences which was allowed by the order under revision in spite of opposition by the revision petitioners. Hence this revision.
2. The contention of the learned Counsel for the revision petitioners is that since execution of the Will by the father of the revision petitioners in favour of the respondent is denied and disputed by the revision petitioners and since the opinion of the expert, to whom the disputed Will was sent, which is available in the Court record, shows that the signatures on the disputed will were not made by the father of the revision petitioners, the trial Court, in exercise of its discretion, should have refused to appoint Commissioner because it, which has to decide the issue relating to the genuineness of the Will, would be losing the opportunity of watching the demeanor of the witness which will have a bearing in judging their veracity and since in Salem Advocate Bar Association v. Union of India , it is observed that in some complex cases, the prayer for recording of evidence by the Commissioner may be declined by the Court, and so the trial Court in exercise of its judicial discretion ought to have directed the respondent to examine its witnesses to prove the Will in the Court because it will have to give a finding on the genuineness of the Will being relied on by the respondent. There is no representation on behalf of the respondent though served.
3. Though the provision of law quoted in the petition is not correct, as it i.e., Rule 10B of Order 26 CPC relates to appointment of a Commissioner for performance of ministerial acts, which cannot, in the opinion of the Court, be conveniently performed before the Court, and since Commissioner to examine witnesses will be made under Rule 4 of Order 18 read with Rule 1 of Order 26 CPC, since quoting of a wrong provision of law, when the prayer made in the petition could be granted under some other provision of CPC, by itself is not a ground for dismissing the petition, the trial Court cannot be said to have committed an error in entertaining the petition.
4. The witnesses sought to be examined on commission are said to be residents of China Ganjam and Chirala in Prakasam District. The other witnesses relating to the Will are said to be residents of Kakinada and Tuni in East Godavari District. Learned Counsel for the revision petitioners, after verifying the railway time table, states that China Ganjam is 322 KM from Pithapuram where the Court house is situate and that the distance between Chirala and Pithapuram is less than 322 KM.
5. As per Rule 19 of Order 26 CPC witnesses who reside within 500 KM of distance from the Court house, if the places where they are residing and the Cort issuing summons are connected by train facility, can be summoned to give evidence in Court. Judicial notice can be taken of the fact that the places of residences of the witnesses sought to be examined on commission and Pithapuram, where the trial Court is situate, are connected by rail. So there is no impediment for the trial Court summoning the witnesses sought to be examined on commission.
6. Since execution of Will relied on by the respondent is in serious dispute, and since Will which is considered to be a solemn document, its due execution has to be proved to the satisfaction of the Court, and since the apex Court in Salem Advocate Bar Association's case (supra), held that in complex cases the prayer for recording of evidence by Commissioner can be declined by the Court, the trial Court, in stead of mechanically ordering the petition, ought to have in exercise of judicial discretion declined to appoint a Commissioner to record the evidence of witnesses to be examined to prove the disputed Will, because there, certainly, would be a difference in the way a witness gives evidence when he is examined in the comfort of his house and in cases where he is examined in open Court. In my considered opinion this 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.
7. Therefore, the revision petition is allowed and the order under revision is set aside and LA. No. 302 of 2006 in O.S. No. 172 of 2004 on the file of the Court of Senior Civil Judge Pithapuram is dismissed. No costs.