' The petition is preferred against an order of the learned Sub-Judge, Dadyal, passed on 24th July, 1984, whereby permission to record the evidence of Mst. Baggi, plaintiff, by issuance of Commission, was refused.
2. Mst. Baggi and others, plaintiff petitioners filed a suit for declaration in respect of the suit property, in the Court of Sub-Judge, Dadyal, on 19th November, 1983. As the plaintiffs were ordered to lead evidence in support of respective claim, an application was moved on behalf of Mst. Baggi, on 25th June, 1984, for recording her evidence by issuance of Commission, as on account of fracture of femur and old age, she was disabled, as such unable to attend the Court personally.
The trial Court adjourned the case to 11th July, without recording decision on the application. On the next date, the learned Presiding Officer was occupied in some other official work at Mirpur, as such could not attend the Court and the case was adjourned to 24th July when on disclosure of the defendants that plaintiff was, by that time able to walk, the learned Sub-Judge ordered the plaintiff to appear personally. Thereafter, the case was adjourned to various dates and ultimately the present petition was preferred, where the prayer for recording evidence of the plaintiff by issuance of Commission, was renewed. The petition is opposed on the ground of insufficient cause for issuance of Commission and the limitation.
3. The learned counsel for the petitioner, furnished an affidavit accompanied by two medical reports, in support of the petition. According to the medical report, dated 12th April, Mst. Baggi of 75 years age, was shown suffering from injury ascribed as fracture of femur. Another medical report issued by Dr. Muhammad Bashir, C.M.C. Dadyal, on 12th February, 1985, described the petitioner as disabled person, unable to walk, on account of the fracture of the left femur. It is accepted that these medical reports were not placed before the learned Sub-Judge. However, the application did contain the fact of disability of the petitioner, on account of bone fracture. It was imperative for the learned trial Judge to record his reasons to disallow the prayer. The impugned order simply contains the version of the defendant, unsupported by any evidence. In my view, the order was not passed in exercise of judicial discretion. It is correct that the medical reports were not available to the learned Sub-Judge but had he given an opportunity to the petitioner, to support the application by evidence, I have no doubt in my mind that the said reports would have been placed before him. Nevertheless, as the cause sufficient in the eye of law, to issue a Commission for recording of evidence of the plaintiff, has been placed before this Court, this Court is not precluded from applying its mind to the reasons advanced in support of the petition. One of the devices available, at this stage, is to send the case back to the Sub-Judge for reconsideration in the light of the medical reports. But in my view, that will not serve the cause of justice, as the likelihood of further delay and multiplicity of proceedings is there. Therefore, keeping in view the interest of justice, it is deemed appropriate to dispose of the petition in exercise of revisional jurisdic tion.
4. Order XXVI, rule 1, C.P.C. empowers the Court to issue Commission to examine a witness by issuance of Commission. It postulates that 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. The requisite conditions necessitating issuance of commission are:-
(i) When a person whose presence is sought before the Court, is already exempted from attending the Court; and ail When such person is suffering from sickeness or infirmity, as such unable to attend the Court personally.
' In the present case, the petitioner/plaintiff, sought to be examined through commission, is a woman, she is 75 years old and suffering from disability caused by fracture of left femur. Under section 132, C.P.C. women of Muslim society are vested with a right to claim exemption from personal appearance in the. Court. May be that in the present case, the ground was not pressed in service but the fact remains that the petitioner who is an old woman, is, at present, suffering from infirmity caused by fracture of her left femur. Thus, the requisite conditions contained under rule 1 of the Order XXVI, C.P.C., are completely fulfilled.
5. It was accepted by the learned counsel for the petitioner that no limitation has been prescribed in the case of revision petitions. However, it was argued that in view of the dictum of the Supreme Court, laid down in Manager Jammu and Kashmir, State Property v. Khuda Yar PLD 1975 SC 678, the limitation of 90 days was to be observed ordinarily. I have gone through the authority cited by the learned counsel in support of the petition but, in order to provide answer to the objection, it is deemed proper to reproduce the relevant observations:- "We now come to the next ground of attack of maintainability of the revision petition before the High Court on the point of limitation. We have already referred to a large number of authorities relied upon by the learned counsel for the respondent in support of his contention that although no limitation was prescribed yet the revision petition had to be filed within 90 days.
' The principle laid down in these authorities is that revision petition filed beyond the unprescribed limitation of 90 days could also be entertained if the Court was satisfied as to the reasons for the delay. In the instant case we find that an appeal was filed in the High Court having been subsequently discovered to be incompetent a request was made to the Court to treat the same as a revision with some additional grounds. The explanation offered was that the right of the petitioner to file a second appeal on account of dismissal in dafault of the first appeal had been extinguished by the gross professional misconduct collusive behaviour of the counsel against whom proceedings were being initiated. It was stated at the bar by Mr. S.M. Zafar that in fact proceedings had already been initiated against the Advocate, considering the allegation in the context of successive dismissals in default of the appeal as well as the application for its restoration, we are satisfied that this offered a satisfactory explanation of the laches and it is presumably for this reason that the learned Judge in the High Court did not raise any objection on this account. Since the Limitation Act is not applicable to a revision, the Court was under no obligation to consider the question of limitation, more so when the point was never raised by the Caveator before us. It may also be relevantly mentioned in this context that no Rule has been framed by any High Court under its rule-making powers prescribing limitation for revision. It is a well-known principle of the administration of justice that no litigant should be made to suffer at the hands of the Court. We have, therefore, no hesitation in over-ruling the objection taken on the ground of limitation.
'It is quite clear from the aforesaid observation that no limitation is prescribed for a revision petition. Nevertheless, even if it is accepted by consensus that ordinarily a period of 90 days may be observed for filing a revision petition, even then the High Court is vested with inherent jurisdiction to entertain the petition at any time. In the present case, it is noticed that the plaintiff who wanted to avail the benefit of issuance of Commission to record her evidence, on account of infirmity, never attended the Court personally and the case was prosecuted on her behalf by her counsel. Failure of the counsel to pursue an application for seeking personal exemption for giving evidence and issuance of commission to record evidence, cannot be a ground to penalise the petitioner.
6. The true test of exercise of judicial discretion in that it may be exercised to meet the ends of justice and not to the benefit of a party at the cost of the right of its opponent. In the present case, it is already noticed that the dispute pertains to the immovable property and in such a position, it is imperative duty of the Court to see that a party alleging its claim to the property, is provided adequate facility to adduce evidence in support of its claim. The fact that a party is suffering from disability like sickness or other infirmity, particularly in the case of a woman, is sufficient in the eye of law, to provide such party the normal facility provided by the Legislature. Thus, in opinion of this Court, acceptance of the request of the petitioner to issue Commission to record her statement, by no stretch of imagination, tantamounts to prejudice the case of the respondents.
7. In view of the aforesaid position of the case, the petition is accepted and the impugned order is set aside. The learned Sub-Judge shall issue Commission to record statement of the plaintiff- petitioner.