KHAWAJA MUHAMMAD SAEED, C.J.--- This appeal, with leave of the Court, is directed against the judgment of the High Court, dated 8-2-2005.
2. Relevant facts giving rise to the present appeal, precisely stated, are that Muhammad Din brought a suit for possession claiming his right of prior purchase before the Court of Senior Civil Judge, Kotli. He in the list of his witnesses included the name of the present appellant. The process was issued against the appellant to appear in the Court for his evidence. An application was moved by Muhammad Din respondent before the trial Court for appointment of a commission for recording the statement of the present appellant on account of his serious ailment. The trial Court disallowed the application for appointment of the commission. A revision was filed in the High Court which also met the same fate. Thereafter this appeal with the leave of the Court has been filed by Ijaz Hussain Shah, the witness, that he being an old diabetic patient is now unable to walk and to appear before the Court for his evidence. He requested that if his evidence is necessary for just decision of the case then the same may be recorded through a commission as required by law. The grounds pleaded in the appeal were re-agitated by the learned counsel for the appellant during the course of his arguments.
3. Ch. Muhammad Reaz Alam, the learned counsel appearing for the respondents, also owned the case of the appellant. According to him on account of his old age and for being old diabetic patient he is not in a position to attend the Court, therefore, unless a commission is appointed to take the evidence of the appellant, it would be impossible to place necessary and relevant facts before the Court to resolve the controversy involved in the case. He requested that the statement of this important witness be recorded through commission as he is unable to move and appear before the Court.
4. We have considered the respective arguments of the learned counsel for the parties in the light of relevant record. The prayer was denied to the plaintiff-respondent by the High Court in the following terms:-- "(8) The petitioner (plaintiff) has already deposited the expenses for procuring the attendance of said Ejaz Hussain Shah in the Court and the trial Court shall summon him. It was obligatory on the part of the trial Court to procure his attendance in the Court for the purpose of recording his statement. Therefore, no sufficient grounds have been assigned by the petitioner for the appointment of the commission. Hence the revision petition, being devoid of any substance, is hereby dismissed."
5. Let us make it clear that the commission cannot be issued as a matter of right on the application of any party. Order XXVI, rule 1, C.P.C. Being relevant is reproduced for the purpose of reference: "(1) Cases in which Court may issue Commission to examine witness.--- Any Court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code from attending the Court or who is from sickness or infirmity unable to attend it."
From the bare reading of the aforementioned provision it becomes clear that it postulates that the Court seized with the matter may in any case issue a commission for the examination on interrogatories or otherwise of any person resident within the jurisdictional limits of the said Court who on account of his sickness or infirmity is unable to attend the Court. As said earlier, it is the matter of discretion of a Court in the circumstances of a particular case as to whether a commission for recording evidence of any particular witness should be appointed through commission or not. However, it is the judicial discretion which should be favourably exercised on the application of any concerned person. If the circumstances brought in the notice of the Court that the evidence of such person for whose evidence commission is desired to be appointed, relevant facts necessary for just decision of the case cannot be brought in the notice of the Court then in that case a commission must be appointed for recording the evidence of such witness.
6. In the present case Muhammad Din respondent brought a suit for possession on the basis of right of prior purchase for the land in dispute. His main contention is that land in question was alienated by the present appellant through a gift-deed which in fact was a sale-deed. He wanted to prove his case by producing the appellant in support of his averments made in the plaint. The case of the appellant is that he being ill is unable to move as such he cannot attend the Court and get his statement recorded. He in support of his assertions has filed an affidavit which was not controverted from the other side. In these circumstances the evidence of the appellant should be recorded through commission.
7. In view of the above reasoning, we set aside the impugned order of the High Court by accepting this appeal and direct that the evidence of the appellant shall be recorded through commission in the presence of the parties or their counsel.