Judgment : 1. The second respondent in W.O.P.No.3 of 1999 filed I.A.No.89 of 1999 before the Principal Subordinate Judge. Salem, under Order 26, Rule 1 C.P.C. praying, for appointment of a commissioner to examine the first defendant. The suit has been filed for a declaration of the title of the plaintiff, the respondent in the revision, to the suit properties on the ground that the suit property was given to him by his mother, the first defendant, by way of oral gift. Hibba, and for consequential injunction. The suit was later converted as W.O.P. It was the contention of the first defendant that she gave no oral gift of the property to the petitioner in W.O.P. In the said W.O.P., the second respondent took a plea that the property was actually settled in his favour by the first defendant. The Wakf Tribunal Authority, Salem, before whom the I.A. was filed to examine the first defendant, came to the conclusion that since there is no proof for the inability of the first defendant, who is aged 80 years, of coming to the court, no commission can be issued for her examination and dismissed the petition. Hence, the present revision. 2. The learned counsel appearing for the petitioner submits that the Tribunal was not justified in dismissing the petition, more so when the first defendant specifically took a plea that the property was settled in-favour of the petitioner, who is the second respondent in the W.O.P., and when the contention’ that she gave the property to the respondent herein by way of oral gift was also denied by her. As the very subject matter revolves around the face whether the property was settled by the first defendant in favour of the petitioner in this revision or given as a gift to the respondent in this revision. I feel that examination of the first defendant is imperative and no prejudice will be caused by examining her by way of a commission. I do not find any reason as to why she should not be examined by a commission. I feel that examination of the first defendant is imperative and no prejudice will be caused by examining her by way of a commission. I do not find any reason as to why she should not be examined by a commission. The contention of the counsel appearing for the respondent that she could be examined the court itself shows that evidence of the witness is important to decide the issue and the argument of the counsel for the respondent that since no materials were produced to show that the first defendant is unable to appear in court and give evidence, is not a ground to reject the prayer of the petitioner to examine the first defendant by way of a commission. The respondent has not disputed that the first defendant is a old lady and no prejudice will be caused by examining her on commission and the contention that the petitioner did not produce any document to show that she will not be able to come to court, is not a ground to reject the prayer. 3. The judgment relied on by the learned counsel appearing for the respondent, rendered in Zabiya Bibi v. Sivaperumal, 1970 (I) MLJ 89 will not apply to the facts of this case since there, the court considered the distinction between a party to the suit and a witness and held that in exercising the discretion to examine a witness on commission, the court has to take into consideration the said distinction. There is a vital difference between a witness and a party to the suit, because a witness is not interested in the subject matter of the litigation and he is a third party but with reference to the party, the same cannot be said. I am unable to understand as to how this judgment will apply to the facts of this case. Similarly, another judgment reported in Rajeevi Ammal v. M.M. Swamy Naidu, 1986 (II) MLJ 419 relied on by the learned counsel for the respondent, does not apply to the facts of this case since the High Court only observed that there is always an advantage emerging from the examination and the cross-examination of the party in court, but it had nowhere laid down a principle of law that the witness can never be examined on commission. 4. 4. I feel, interest of justice requires that an old lay need not be summoned to the court for the purpose of examination and that she can be, examined by way of a commission. In that view of the matter, the order of the Wakf Tribunal Authority, Salem, in the I.A. dismissing the prayer of the petitioner for examinations of the first defendant by way of a commission, is set aside and the prayer sought for by the petitioner in this revision is granted. The revision is allowed. Consequently, C.M.P. No.4227 of 2000 is closed.