V K CHANDRASEKHAR Vs. V K SUSEELAMMA

JUDGEMENT

(1.) The petitioner herein is the plaintiff in O.S.No.36 of 2001 on the file of the Court of the Additional Senior Civil Judge, Anantapur. The suit is filed for specific performance of the agreement of sale dated 30.12.1995 allegedly executed by the 1st defendant / 1st respondent herein. Pending the suit, the 1st defendant died and thereafter the respondents 3 & 4 have been brought on record as legal representatives of the deceased 1st defendant. The 2nd defendant, who is already on record, has also been declared as the legal representative of the deceased 1st defendant. Thereafter, the defendants 2 to 4 filed I.A.No.825 of 2008 under Order 26 Rule 9 of C.P.C. to appoint an Advocate-Commissioner to record the evidence of the attestors of the will dated 15.09.1999 allegedly executed by their deceased mother. It is stated that the attestors have become old and they are unable to come to Anantapur for the purpose of giving evidence and therefore a Commissioner may be appointed to record their evidence at Tirupati. The said application was opposed by the plaintiff contending that the will dated 15.09.1999 is a fabricated document and therefore it is unenforceable. It is also contended that the examination of attestors of the said will is unnecessary and not relevant for adjudication of the case and as a matter of fact the application is made only to delay the suit proceedings.

(2.) The Court below by order dated 6.1.2009 allowed I.A.No.825 of 2008 and appointed an Advocate-Commissioner to record the evidence of the witness at Tirupati making it clear that the Commissioners fee and the other expenses including the expenses incurred by the plaintiff to go to Tirupati along with his advocate to cross-examine the witnesses shall be borne by the applicants/defendants 2 to 4.

(3.) The said order is challenged in this Revision Petition contending inter alia that since the suit is based on the agreement of sale executed by the 1st defendant, the validity or otherwise of the alleged will in favour of the defendants 2 to 4 cannot be gone into. It is also contended that since there is no issue with regard to the proof of the alleged will, the Court below committed a grave error in allowing the application and appointing the Commissioner to record the evidence of the attestors of the said will as sought by the defendants.