The court has the discretion to issue a commission to examine witnesses on commission, but this discretion must be exercised judiciously and judicially, especially in cases where the suit is filed for probate of a Will and the challenge to the Will is one of forgery.

1. Heard learned Advocates for the appellants as well as the respondents.

2. This appeal is directed against a judgment dated 16th December, 2014 in GA No.3059 of 2014 passed by the learned Single Judge. It is necessary to narrate the admitted facts in order to appreciate merits in the present appeal. The respondents/plaintiffs before us has filed a suit to obtain probate of last Will and Testament of Smt. Sajani Devi Bhartia. Apparently, the said suit is contested. The two attesting witnesses for this Will are one Mr. Ajay Bhargava, Partner of Khaitan & Co., Advocates and another person by the name of Mr. Sharad Vaid, Partner of Khaitan & Co., Advocates, both practicing and residing at New Delhi. The testatrix is wife of Mohan Lal Bhartia. It is also not in dispute that Will of her husband and Sajani Devi Bhartia was executed on the same day dated 8th March, 2007. According to the plaintiff, this Will in question is the last Will and Testament of deceased Smt. Sajani Devi Bhartia. Admittedly, so far as probate of the Will of her husband was taken on 10th September, 2009 and the same was uncontested.

3. The appellants/defendants have seriously contested the suit for probate. The issue which arises for our consideration is with regard to examination of these attesting witnesses to the Will on Commission. The relevant paragraphs indicating the reasons for their examination on Commission are at paragraphs 23, 24 and 25. The appellants/defendants opposed this application mainly on the ground that unless the examination of witness is face to face, truthfulness of the evidence of the witness will not be able to be ascertained, as it is relatable to demeanor of the witness. Placing reliance on AIR 1924 Cal 971 (Panchkari Mitra v. Panchanan Saha & Ors.) this issue was raised. According to appellants/defendants, the reason that the attesting witnesses are lawyers practicing at New Delhi cannot be a genuine and proper ground to have them examined on Commission. It was also contended on behalf of the appellants that when witnesses are confronted with documents in the witness box if they are examined in Court, the composure of such witnesses is entirely different compared to their examination outside the Court on Commission. Learned Senior Counsel for the appellants also contended that it is right of a party to have the evidence recorded in Court and, therefore, there cannot be examination of a witness on Commission on the ground that the witness is a busy and preoccupied professional. Learned Judge after referring to amendments brought to procedure of examination-in-chief by way of affidavit etc. (though not applicable to the present trial) was of the opinion that the proposition of recording evidence in Court has to be examined liberally and, therefore, the importance of physical presence of witness in Court while recording of their evidence has been diluted even in cases where demeanor of the witness is crucial or relevant. Subsequently after referring several decisions of the Apex Court, learned Judge opined that the convenience of the parties is relevant when witnesses have to be examined who are residing outside the jurisdiction of the Court to avoid delay. According to learned Judge, in extremely rare cases where the Court does not have the confidence in the ability of the Commissioner to note or video record demeanor of the witness or where even video-recording of the evidence cannot bring out the demeanor which the Court would like to see during the examination of a particular witness, the Court should refuse examination on Commission. Ultimately, learned Judge opined that the two attesting witnesses are lawyers in a reputed firm of solicitors in New Delhi and since they are bound to be heavily preoccupied coupled with the fact that at the time of passing this order it was impossible for the Court to allocate a fixed time period for examination of the two attesting witnesses due to work pressure on the Court, it would be