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Revision Application No. 68 of 1952 decided on 4th November 1954.
Civil Procedure Code (V of 1908), Ss. 115, 132‑Order, directing pardanashin woman to appear in Court‑Revision competent.
An order directing a pardanashin woman to appear personally in Court is in breach of her right to exemption under section 132 Civil P. C. and is therefore revisable. The Court by such an order acts illegally or with material irregularity in the exercise of its jurisdiction.
A decision negativing or contrary to the right exemption is a case decided within the meaning of section 11 5 Civil P. C.
Castellino, for Applicant.
I hsanul Haq, for Opponent.
‑In the applicants suit before the Second Class Sub‑Judge Jacobabad for a declaration that she is not the lawfully wedded wife of Shafi Muhammad, a commission issued for her examination as section 132 and Order XXVI Rule 1 Civil P. C. contemplate. The commission was returned duly executed after a certified copy of an extract of the Register of Births and Deaths in Jacobabad had been produced before the commission. The evidence taken on commission was read as evidence for the applicant in the case and thereafter the opponent examined his witnesses and closed his case. The case thereafter was fixed for arguments.
At this stage the opponent made an application to re‑call the applicant "for determining her age". The application was opposed on two grounds, viz., that the applicant was a parda nashin Lady who had been examined on commission and that the case had been closed by both sides and ought not to be re‑opened. The learned Sub‑Judge referred to Order V Rule3 and Order 18 Rule XVIII Civil P. C. and said that the applicant was a material witness and that she had sent an application to the Court praying that she should be summoned personally to give evidence in the suit. The contents of this letter were not divulged as they contained the statement that she may otherwise lose her life. All that the order of the learned Sub- Judge says is that she has made many allegations in her application some of which are very material for the disposal of the suit. He therefore granted the application of the opponent that the applicant should be recalled for determining her age.
The application itself has been kept in the learned Sub -Judge's confidential box and is not on the record of the case. Nor are all its contents known.
The contention has been raised that the order of the Learned Sub‑Judge is not a case decided within the meaning of section 115 Civil P. C. and that the order is an interlocutory one to which the provisions of that section are inappropriate. It is true that not every interlocutory order is a case decided within the meaning of section 115 Civil P. C. and that in Shantibai v. Motiram (A I R 1946 Sind 30) it was held that an order for the examination of a witness on commission under Order XXVI Rule 1 or Rule 4 is not a case decided within the meaning of section 115 Civil P. C. The provisions of section 132 Civil P. C. were however not involved in that case. Subsection 1 of that section' says that women who, according to the customs and manners of the country, ought not to be compelled to appear in public, shall be exempt from personal appearance in Court. The argument is that this subsection has been applied before when commission issued for the examination of the applicant and that the order sought to be revised is in breach of the exemption declared in the subsection. The question then is whether the order purports to infringe the applicant's right not to be compelled to appear in public. It is said that a decision negativing or contrary to this right is a case decided within the meaning of section 115 Civil P. C. I agree with this contention.
It is not necessary to consider whether the order is a decision to reopen the case of either or both sides and there fore a case decided within the meaning of section 115 Civil P. C.
On the merits, it seems, the learned Sub‑Judge has acted upon a letter received by him as to the genuineness of which there appears to have been no question raised in his own mind. The probability of such a letter being sent by others than the applicant or the motive of the disgrace involved in causing an adversary in the position of the applicant to appear in Court has not been considered. The latter appears to have been taken advantage of by the opponent who filed the application that the applicant, should be recalled "for determining her age". Her age is in issue in the suit and was a matter open on the applicant's examination on commission. Moreover there was produced a certified copy of an extract from the Register of Births and Deaths in Jacobabad when she was examined on commission and what she said on commission was read as evidence. For these reasons I think that the order sought' to be revised is in breach of the right to exemption declared in section 133 (132) Civil P. C. and the learned Sub‑Judge has acted in the exercise of his jurisdiction illegally or with material irregularity.
I therefore, set aside the order dated 31st March, 1952 which is sought to be revised. The opponent will bear the costs of the applicant of this application.
A. H. Order set aside.
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