Motibai vs Champalal

Chaturvedi, J.—This is Defendant''s revision against an order passed by the Additional Civil Judge, 1st class, Indore city.

The non-Applicant Plaintiff Champlal bought a suit for ejectment against the present Petitioner Defendant. The ease was fixed for evidence when the Defendant submitted an application on 17-8-1955 requesting that her statement be recorded on Commission on the ground that she is old and infirm and that according to the custom and practice prevalent amongst her community and the family she is not accustomed to appear in public. The non-Applicant opposed the application. Without taking any evidence, the trial Court rejected this petition. So the lady Defendant has come in revision to this Court.

It is curious that the trial Judge has not given a finding anywhere that the Defendant does not belong to that category of women, who according to customs and manners of the country ought not to be compelled to appear in public within the meaning of Section 132(1) of the Code of Civil Procedure. He has by some mistake placed reliance on a judgment of Justice Mack in Salma Bi v. Mohammad Ebrahim Sahib AIR 1950 Mad 151 (A). This judgment has not found acceptance by the courts in India and has been clearly overruled by a Division bench in Mohammad Ismail Maricair Vs. Wazir Bi Bi Saheba, This is a very lucid judgment in which it has been laid down that the words customs and manners of the country mean the customs and manners of the different communities and classes and sections of the people in the country and not the customs and manners of the country as a whole.

It was laid down in this judgment that in Order to decide whether particular woman is or is not entitled to the benefit of Section 182(1), the customs and manners of the country prevailing at the time the Courts are called upon to apply it should be the criterion and not the customs and manners which might have prevailed years ago, but which had become completely obsolete. It was further observed that a change in the mode of life of a particular lady claiming exemption from personal appearance in Court can be taken into consideration in exercising the discretion in the grant of a prayer from her for being examined on commission

It was added that the Court cannot in the exercise of its discretion refuse to issue a commission to a woman falling within the exempted class u/s 132, except, of course, when the Court is convinced that the application for her examination is made mala fide and would amount to an abuse of the process of the Court or except when the application is made by the woman who is a party to the suit who, though belonging to a community, observing Purdah, has herself abandoned it. Most respectfully I concur in this opinion.

If the learned Judge of the Court below had taken evidence and then had conic to some conclusions on the point whether the Defendant comes into the category of women who according to the customs and manners ought not to be compelled to appear in public, I would not have intervened in this revision. But unfortunately the learned Judge never eared to take evidence and ascertain the facts therefrom but disposed the application in a summary manner relying on judgment of the Madras High Court which has been overruled and on the assumption that the parties belong to the same community which may or may not be correct.

Mr. Newaskar pointed out that the Defendant belongs to a different class of Mahajahs and not to the same class of Mahajans as the Plaintiff. In my opinion the trial court has to give an opportunity to the parties about the customs and manners prevalent in the community of the Defendant about the compulsion of women to appear in public. Till evidence is recorded on this point, no final decision can. be made by the Civil Judge.

As regards the fact of infirmity and sickness there is an affidavit of the Plaintiffs and the learned Judge has decided against the Defendant. So this point must be closed; it cannot be interfered with. But as regards the point u/s 132 Code of Civil Procedure, I send the case back for re-decision in the light of the observations made above. Costs of this revision will abide the result.