JUDGMENT

1. - The petitioner wants to prove that Shri Sudarshan Kumar Bhatia (the deceased), the late husband of the respondent No. 1 and the father of the respondent No. 2 and who was the brother of the petitioner, had executed a will while he was staying at Frank-furt in Germany in presence of Mrs. Brigitte Rosmarie Goerke, resident of Bohmerstrassee 5,6000 Frank-furt am Main, West Germany and Dr. Ury Fehr, resident of Wilhelm-Busch-Strass 16, 6096 Raunheim, West Germany,whereby he had bequeath his property in favour of the petitioner and the respondent No. 2. The genuineness of the will is in dispute and, in order to prove that the will propounded by the petitioner is the last will and testament of the deceased, the petitioner wants to examine the above said two witnesses as the attesting witnesses of the will. The learned trial court directed the petitioner to procure the attendance of the witnesses, but, he having failed to do so, his request for their examination was rejected vide the impugned order dated 30-7-1993. Hence this revision petition by the petitioner.

2. It has not been disputed before me that the above said witnesses are residents of Germany and are not within the jurisdiction of the courts of this country and, as such, cannot be summoned to appear in the learned trial court. It has further not been disputed that the witnesses are required to be examined in order to examine the contention of the petitioner. When this matter came up before me on 10-12-1993, the learned counsel for the parties agreed that an open Commission be issued for examination of the witnesses concerned and that the expenses of the learned counsel for the respondents as also of the learned local commissioner, besides the fee of the learned local commissioner would be paid by the petitioner who would also pay for the charges for procuring the attendance of the witnesses before the learned local commissioner at the place of the execution of the commission besides the hotel and food charges of the learned local commissioner and of the learned counsel for the respondents for three days at the place concerned.Thereafter, the case was adjourned and the file has been put up today.

3. Shri H.M. Bhargava, who is an Advocate of this court and is present in court, has agreed to execute the commission. The learned counsel for the parties also agree to the appointment of Shri Bhargava as the local commissioner for this purpose.

4. In these circumstances, the revision petition is accepted, the impugned order dated 30-7-1993 is set aside and Shri H.M. Bhargava, Advocate is appointed as the local commissioner. With the consent of the learned counsel for the petitioner, and fee of Shri Bhargava is tentatively fixed at Rs. 25,000/-, to be paid by the petitioner, who would also make arrangement for obtaining visa of Shri Bhargava at his cost and would pay the charges for obtaining of visa by the learned counsel for the respondents and would also pay the expenses of the learned counsel for the respondents for stay and hotel, food and transport charges in connection with the commission proceedings for a period of three days. The respondent No. I states that Shri M.L. Lonial, Advocate, Delhi is her cousin and would be representing the respondents during the commission proceedings before the learned local commissioner. It is agreed between the learned counsel for the parties that the expenses for the learned counsel for the respondents for arranging visa and for his stay etc. in Frank-furt would be Rs. 17,500/-. It is further agreed that the petitioner would deposit two return executive class air tickets from New Delhi to Frank-furt; one in the name of Shri H.M. Bhargava, Advocate and the other in the name of Shri M.L. Lonial, Advocate. The petitioner will pay the fee of the learned local commissioner and the expenses of the learned counsel for the respondents by way of cheques within one week from today and would submit receipts and the above said two air tickets in the learned trial court besides furnishing an undertaking there to the extent that he would arrange for and pay for the expenses of the learned local commissioner for stay at Frank-furt for a period of three days besides making the arrangement for obtaining his visa for going to Germany. On these documents being submitted within four weeks from today, the learned trial court would hand over the will concerned to the learned local commissioner on his making an application in this respect to enable the learned local commissioner to execute the commission. The learned local commissioner will record the statements of the witnesses, who would be produced by the petitioner before him at Frank-furt at the time, place and date to be fixed by the learned local commissioner with the consent of the learned counsel for. the parties. The learned local commissioner with the consent of the learned counsel for the parties. The learned local commissioner should execute the commission as soon as possible and submit his report in the learned trial court soon after the execution of the commission.The revision petition stands disposed of accordingly.Revision petition accepted.

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