Order Upon notice to other side, this civil revision application has been listed under the heading for admission for final disposal. 2. Heard Mr. Ram Balak Mahto, learned senior counsel appearing on behalf of the petitioner, and Mr. T.K. Jha, learned Senior counsel appearing on behalf of the opposite party no. 1. 3. The civil revision application is directed against the order dated 12-7-1994, by which the learned Subordinate Judge has rejected the petition filed on behalf of the petitioner under Order 26 Rule 1 of the Code of Civil Procedure (hereinafter referred to as 'the Code') for examination on commission. 4. The short facts giving rise to this civil revision application are as under: - The plaintiff-opposite party no.1 filed Title Suit no.70 of 1992 in the Court of Subordinate Judge, Patna City, for specific performance of contract for sale of the land in question on the basis of deed of agreement dated 10-8-1990, executed by defendant no. 1 - petitioner in favour of the plaintiff. The defendant no. 1 - petitioner is the owner of the suit land and it appears that she had agreed to sale the land in question to the plaintiff at the rate of Rs.16,500/- per kattha and in consideration whereof the plaintiff paid Rs. 11,101/- only as earnest money to the defendant no. 1. Thereafter, an agreement for sale dated 10-8-1990 was executed in favour of the plaintiff by the defendant no.1 incorporating therein certain terms and conditions. The plaintiff, as it appears from the plaint, thereafter, showed his willingness to perform his part of the obligation under the contract, but the defendant no. 1 for one reason or the other avoided to execute the sale-deed and it was for this reason that the present suit for specific performance was filed. 5. After filing of the suit, defendant no.1 entered into appearance through her attroney and filed her written statement stating therein the she had agreed to sale the land in dispute to the plaintiff-opposite party no. 1 and the plaintiff was required to pay the entire consideration money as agreed upon within a period of one year of the execution of the deed of agreement for sale and upon payment of the entire consideration money the defendant no. 1 would execute a registered sale-deed or deeds in favour of the plaintiff, but after the expiry of the stipulated period the defendant no. 1 would execute a registered sale-deed or deeds in favour of the plaintiff, but after the expiry of the stipulated period the defendant no. 1 gave notice dated 10-7-1991 to the plaintiff by registered post informing the time limit and essence of contract and informed the plaintiff that the time will not be extended any more. 6. The plaintiff filed a petition in the court below praying therein to direct the defendant no. 1 to begin the evidence first. Before an order was passed upon the petition filed on behalf of the plaintiff for adducing evidence by the defendant no. 1, the petitioner filed a petition in the court below on 7-7-1994 under Order 26 Rule 1, read with Section 151, of the Code for issuance of commission for her examination, at her residence on the ground she is a Pardanashin lady aged about 60 years and she is not keeping good health. 7. The petition filed by defendant no.1 dated 7-7-1994 has been rejected by the impugned order dated 12-7-1994. 8. Mr. Ram Balak Mahto, the learned counsel appearing on behalf of the petitioner, submitted that since the petitioner is a Pardanashin lady, aged about 60 years, and she is not keeping good health, her prayer for issuance of commission for her examination at her residence could not have been rejected by the learned court below. He further submitted that when the petitioner by filing her petition under Order 26 Rule 1 of the Code made out a ground that she is a Pardanashin lady, the court below should have directed for issuance of commission for her examination at her residence. Mr. Mahto further submitted that a woman who according to the customs and manners of the class or section or community to which she belongs, ought not to be compelled to appear in public and the petitioner being a Pardanashin lady belonging to a particular community, could have been examined on commission. Mr. Mr. Mahto further submitted that a woman who according to the customs and manners of the class or section or community to which she belongs, ought not to be compelled to appear in public and the petitioner being a Pardanashin lady belonging to a particular community, could have been examined on commission. Mr. Mahto has led stress on Section 132 (1) of the Code and has submitted that Section 132 of the Code recognise the right of a Pardanshin lady, who according to the customs can claim the privilege of being examined on commission and, accordingly the petitioner could have been exempted by the learned court below in exercise of its power under Section 132 (1) of the Code from giving evidence in court and she would have been allowed to be examined on commission, in terms of Order 26 Rule 1 of the Code. In support of his proposition, Mr. Mahto has placed reliance upon a decision in the case of Ramkali Kuer vrs. Chhathu Singh (A.I.R. 1961 Patna 210). 9. Mr. T. K. Jha, the learned counsel appearing on behalf of the opposite party no.1, submitted that the learned court below has rightly refused to issue commission for examination of the petitioner at her residence. In this case, a counter-affidavit has been filed on behalf of opposite party no. 1. Mr. Jha further contended that there is no proper prayer in terms of Order 26 Rule 1 of the Code made on behalf of the petitioner and the petition has neither been affidavited nor verified and, therefore, the learned court below has rightly refused to accept the prayer of the petitioner. Mr. Jha has drawn my attention to the petition filed on behalf of the petitioner under Order 26 Rule 1 of the Code, which has been marked as Annexure-A to the counter-affidavit. 10. Mr. T. K. Jha, the learned counsel for the petitioner, has further submitted that the petitioner is not a Pardanashin lady and she is appearing in public and mixing with common people, openly. In this context he has drawn my attention to the document, which has been marked as Annexure-B to the counter-affidavit. Annexure-B is a report submitted in the court below in Misc. Case no. 7/1973-74 by the Amin showing that the delivery of possession of the land in question has been effected in presence of Bibi Hassan Bano (petitioner). In this context he has drawn my attention to the document, which has been marked as Annexure-B to the counter-affidavit. Annexure-B is a report submitted in the court below in Misc. Case no. 7/1973-74 by the Amin showing that the delivery of possession of the land in question has been effected in presence of Bibi Hassan Bano (petitioner). From Annexure-B of the counter-affidavit it appears that the petitioner herself had appeared on the spot along with the persons of the locality for taking delivery of possession and delivery of possession was effected in her presence on the spot. 11. Mr. T.K. Jha, therefore, contended that the petitioner is not fulfilling the requirements as laid down under Section 132 of the Code and, therefore the provision of Order 26 Rules 1 and 4 of the Code is not attracted. In support of his proposition Mr. Jha has placed reliance upon the decisions in the case of Md. Ismail vrs. Wazir Bi Bi Saheba (A.I.R. 1951 Madras 311) and Jaya Shankar Mills (Barsi) Ltd. vrs. Hazi Zakaria Hazil Ebrahim (A.I.R. 1962 Andhra Pradesh 435). 12. In the case of Ramkali Kuer (supra), as relied upon by the learned counsel appearing on behalf of the petitioner, it has been held that a woman belonging to a particular community, custom and manner ought not to be compelled to appear in public and she can be examined on commission. It has further been held that issue of commission is a matter of judicial discretion of the court depending on the facts of each case and a commission ordinarily should be issued for the examination of a Pardanashin lady unless her application for commission is malafide or would amount to an abuse of the process of the Court or it may result in manifest of justice to any party or for any other valid reasons. From the facts of this case, it appears that neither there is a proper petition on behalf of the petitioner for issuance of a commission for her examination at her residence nor the petitioner has spelled out the truth that she is a Pardanashin lady and she is not appearing in public. From the documents brought on record it appears that she had the occasion to appear in public. In the case of Md. From the documents brought on record it appears that she had the occasion to appear in public. In the case of Md. Ismail (supra) as relied upon by the learned counsel appearing on behalf of the opposite party no.1, it has been observed that when a lady submits to an examination on commission she also submits to appearance though under a Parda before the Commissioner appointed to take her evidence, a counsel on either side and the parties, it is clear that she is willing to give evidence before strangers. If so, why she should refuse to give evidence outside her residence before the same person as in an examination except that the trial judge would take the place of the Commissioner, and thus she cannot decline to be examined at any place other than her own choice. It has, therefore, been held that there is virtually no difference between the examination in the Court and an examination on commission. 13. In the other case called upon by Mr. T. K. Jha, the learned counsel appearing for the opposite party no. 1, reported in A.I.R. 1962 Andhra Pradesh 435 (supra), it has been held that the benefit under Order 26 Rule 4 of the Code is discretionary, and not to be claimed as a matter of right. 14. It is well settled that discretion conferred on courts of justice is certainly discretionary which has to be exercised judiciously and not arbitrarily. However, the descretion has to be exercised in the particular facts and circumstances of the case and no hard and fast rules of universal application can possibly be laid down. The person invoking exercise of discretion must be bonafide in making such application. In exercise of discretion the conduct of the parties has also to be kept into consideration. I have already indicated above that there are materials on record to show that the petitioner, being a Pardanashin lady appears before public and is mixing with the common people and in such a circumstance her application made under Order 26 Rule 1 for issuance of commission does not appear to be bonafide and as such she cannot claim the benefit as envisaged under Order 26 Rule 1, read with section 132, of the Code as a matter of right and, in that view of the matter, the submissions made on behalf of the petitioner cannot be acceded to. 15. 15. In the instant case, I find that though the court has refused the prayer of the petitioner for her examination on commission, has directed that in case the petitioner wants to avoid public gaze, she can be examined in the chamber of the court or even in the closed court room by excluding the outsiders. This direction, in my opinion is justified and the court below has done so keeping into consideration the fact that the demeanour and gesture of the witness may be marked by the court. 16. Thus I find that the court below has exercised its discretion rationally and has refused to issue commission for the examination of the petitioner. 17. Having heard the learned counsel for the parties and considering the facts and circumstances of the case, in my opinion, the order impugned suffers from no infirmity and it should not be interfered with. In the result, this application is dismissed, but without costs. 18. Before parting with this order, it is directed that the petitioner should make herself available before the court for examination, either by appearing in person or through her attorney, on the date next fixed in the suit and the learned court below shall fix a date for her examination after giving a short notice to the plaintiff and she will be examined in the chamber of the court as already directed by the court below.