The court's discretion to appoint a commissioner for the examination of a witness residing outside its jurisdiction must be exercised judiciously, considering all the facts and circumstances of the case, including the materiality of the evidence, the demeanor of the witness, and the potential for manifest injustice or hindrance to a fair trial.

T. NARASINGA RAO, J.

( 1 ) THE Civil Revision Petition is filed by the 2nd defendant against the order of the District Munsif, Chirala, whereunder he allowed the petition of the plaintiff for the appointment of a commissioner to examine a witness for the plaintiff.

( 2 ) THE plaintiff laid a suit for declaration and possession of certain properties on the strength of a will said to have been executed by one krishnavenamma on 7-11-1969. The case of the plaintiff, who is the sister of the said Krishnavenamma, is that prior to the death of Krishnavenamma, she was undergoing treatment at a Hospital at Ongole and that on 7-11-1969, she executed a will in the Hospital. The said Krishnavenamma died later, on 14-12-1969. The 2nd defendant is said to be the daughter of the said krishnavenamma. The will purports to bequeath the entire properties of Krishnavenamma in favour of the plaintiff to the exclusion of the 2nd defendant. The suit is resisted by the 2nd defendant inter alia on the ground that the said will is a forged one and that the husband of the plaintiff in connivance of the attestors and others brought a false will into existence. The doctor, that is, the private practitioner at Ongole, where krishnavenamma was under treatment prior to her death is said to be one of the attestors. The plaintiff has now filed an application for examination of the said doctor on commission. Though this application was opposed by the 2nd defendant, the learned District Munsiff allowed the same and passed the following cryptic order:"heard. Petition is allowed. Sri M. James is appointed Commissioner to examine the witness. . . . . . ". The 2nd defendant has now challenged the appointment of the Commissioner in this revision on the ground that in the written statement, they have taken a stand that the alleged will was concocted by the husband of the plaintiff with the collusion of the said medical practitioner and others. This plea of his is borne but by the fact that the affidavit in support of the petition for appointment of the Commissioner has now come to be made by the husband of the plaintiff and that he is actively behind this whole litigation. It is also contended that the rights of the plaintiff mainly depend upon the proof of the will in question and if an important witness like the medical practitioner, one of the attestors, is examined on Commission the Court will not have the opportunity of noting the demeanour of the witness and if that witness is examined only by the Commissioner all that the Court will have is only the record of his statement. It is thus contended that tbougb the witness resides outside the jurisdiction of the Court of Chirala, but only within a distance of 40 miles from that place, the trial Court has not exercised its discretion properly in allowing the petition. It was on the other hand contended by the learned counsel for the respondent No. 1, (Plaintiff) that admittedly, the witness resides outside the jurisdiction of the District Muosif s Court, Chirala, and the examination of that witness by the issue of a Commission is within the jurisdiction of the District Munsif and in accordance with the provisions of Order 26 Rule 4 (a) C. P. C. It is further contended that as the said witness is a busy medical practitioner, running a private clinic of his own, and he would not be in a position to spare much time to attend the court at the expense of his suffering patients.

( 3 ) IT is not in dispute that the place where the witness practises as a private doctor is only a distance of 40 miles from Chirala but it is outside the territorial limits of Chirala District Munsif Court. Order 26 Rule 4 C. P. C. , would empower any court to issue a commission for the examination of any person residing beyond the local limits of its jurisdiction. The learned counsel for the revision petitioner does not question the jurisdiction of the court below to issue the commission. But, what is sought to be contended is the propriety of th

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