ORDER 1. The plaintiff has preferred this appeal under section 96 of the Code of Civil Procedure, 1908 assailing the judgment and decree dated 9.2.2007 passed by learned First Additional District Judge, Hoshangabad in Civil Suit No. 84-A/2006, whereby the suit for specific performance of contract has been dismissed and a decree to return Rs. 13,000/- with interest has been passed. 2. In brief, the case of plaintiff is that agricultural land bearing survey No. 19/3 is of defendant No.1, Champalal @ Chaua. In order to marry his daughter, defendant on account of legal necessity entered into an agreement with the plaintiff to get the suit property sold to her for Rs. 96,000/- and a document of agreement of sale was executed on 18.9.2002. The plaintiff also paid Rs. 13,000/- on the insistence of defendant No.1 to one Shekh Salim to cancel the agreement which was between Shekh Salim and defendant No.1. Despite the insistence of plaintiff, defendant did not perform his part of performance although he had already received a sum of Rs. 83,000/- from the plaintiff as earnest money. Hence suit for specific performance of contract has been filed by plaintiff. 3. Defendant No.1 Champalal filed written statement and refuted the plaint averments. In the written statement, it has been denied that he ever entered into an agreement with the plaintiff to get the suit property sold for a consideration of Rs. 96,000/- out of which an amount of Rs. 83,000/- had already been paid to him. Indeed, execution of the document of agreement of sale itself has been denied by the defendant Champalal. 4. The State of M.P. is a formal party in the suit and no relief has been claimed against it. Learned trial Court, on the basis of the averments made in the plaint and denial in the written statement, framed necessary issues and directed the parties to lead evidence. On 11.1.2007, an application under Order XXVI Rule 1 CPC was filed on behalf of the plaintiff stating therein that she is having an advanced age of 80 years and is unable to come to the Court to give evidence because she is unable to move as well as she is a heart patient and is also having arthritis disease for which a medical certificate was also annexed alongwith the application. This application of plaintiff was rejected vide order dated 11.1.2007 and thereafter by the impugned judgment the suit has been partially decreed by holding that the plaintiff is entitled to recover Rs. 13,000/- from the defendant alongwith interest @ 6% per annum which he paid to Shekh Salim. In. this manner, the present appeal has been filed by the plaintiff. 5. The contention of Shri Dhagat, learned counsel for the appellant is that the learned trial Court arbitrarily dismissed the application under Order XXVI Rule 1 CPC and because the plaintiff has not been examined the decree of specific performance has not been granted by the trial Court. 6. On the other hand, learned counsel for the defendant-respondent No.1 argued in support of the impugned judgment. 7. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed. 8. On going through the application under Order XXVI Rule 1 CPC filed by plaintiff before trial Court, it is revealed that the age of plaintiff is 80 years and she is unable to move. She is also patient of heart and arthritis diseases. No reply to this application was filed by defendant. Learned trial Court vide order dated 11.1.2007 has rejected the application only on the ground that it cannot be inferred that plaintiff is seriously ill. In the plaint, the age of plaintiff has been mentioned as 75 years and the same was filed on 17.7.2006. Thus, it can be inferred that plaintiff is having an advanced age. The application under Order XXVI Rule 1 CPC is also supported by an affidavit of plaintiff, as well as a certificate of doctor certifying that she is a patient of arthritis and is unable to walk, has also been filed. In presence of all these materials and particularly when no reply to the application and counter affidavit has been filed by the defendant dislodging the averments made in the affidavit and the application, I am of the view that learned trial Court arbitrarily, without any cogent reason dismissed the application. 9. On going through Rule 1 of Order XXVI, it is revealed that the Court may in a suit permit any party to be examined on commission if he or she is sick or infirm and is unable to attend the Court. 9. On going through Rule 1 of Order XXVI, it is revealed that the Court may in a suit permit any party to be examined on commission if he or she is sick or infirm and is unable to attend the Court. Explanation to Rule 1 of Orders XXVI empowers a Court to accept a certificate purporting to be signed by a registered medical practitioner as evidence of the sickness or infirmity of any person without calling the medical practitioner as a witness. On going through the medical certificate issued by Dr. A.S. Meena who is an M.B.B.S. doctor, it is revealed that the age of plaintiff is 80 years and she is a patient of arthritis and is unable to walk and therefore in view of the explanation to Order XXVI, CPC as well as looking to the provisions of Rule 1 of Order XXVI, the discretion should be exercised by the trial Court in favour of the plaintiff, particularly when there is no material in rebuttal and when the defendant has not refuted the averments of the application supported by an affidavit of plaintiff by filing any counter affidavit. The decision of this Court in Ramrakhi Bai (Smt.) v. Pitambhardas placed reliance by learned counsel for appellant is applicable in this case. 10. It is true, the order allowing or disallowing an application under Order XXVI Rule 1 CPC is a discretionary order but if a Judge proceeds on a wrong principle in a matter within its jurisdiction, his order may be set aside by an appellate Court. In this context, I profitably place reliance on a Division Bench decision of this Court Laxmichand v. Brij Bhushandas and others, 1969 JLJ 467 , wherein Shivdayal, J., as His Lordship then was, while placing reliance on Watson v. Rodwell, (1876) 3 Ch.D. 380 in para 6. has categorically laid down the said principle. It would be fruitful to quote that part of the judgment which reads thus: "A variety of circumstances may weigh before the Court when in exercise of its discretion it does not allow interest pendentelite at the contractual rate, even if the rate of interest is not penal or unconscionable or otherwise excessive. has categorically laid down the said principle. It would be fruitful to quote that part of the judgment which reads thus: "A variety of circumstances may weigh before the Court when in exercise of its discretion it does not allow interest pendentelite at the contractual rate, even if the rate of interest is not penal or unconscionable or otherwise excessive. If a Judge proceeds on a wrong principle in a matter within his discretion his order may be set aside by an appellate Court." On going through the decision of Watson v. Rodwell (supra), it is revealed that it has been categorically held as under: "Where the Judge of the Court below has exercised his discretion on the subject. the Court of appeal IV ill not interfere, unless he has acted on a wrong principle." Thus, I am of the view that modus operandi adopted by trial Court rejecting the application under Order XXVI Rule I CPC was a wrong approach of law and in arbitrary manner the said application has been dismissed. 11. Resultantly, this appeal succeeds and is hereby allowed. The judgment-decree passed by the trial Court is hereby set aside. The order of the trial Court dated 11.1.2007 rejecting the application under Order XXVI Rule 1 CPC filed by the plaintiff, is also set aside and the said application of plaintiff is hereby allowed. The matter is remanded to the trial Court to decide the suit afresh after allowing the plaintiff to examine herself on commission. Looking to the facts and circumstances, the parties are directed to bear their own costs.