1995 PLP 75 (CLC)

Civil Revision No. 848 of 1994, decided on 1st March, 1994. ‑‑‑‑S. 132 & O.XXVI, R.1‑‑‑Application for examining female defendant on commission‑‑‑Trial Court refusing such application‑‑‑Criteria for determining whether defendant was a woman who according to Customs and manner of country ought not to be compelled to appear in public for personal appearance in Court for her viva voce examination. The customs and manners of the country mean the customs and manners of different communities and of people of all walks of life. Further, in order to determine, whether a particular woman was or was not entitled to the protection under subsection (1) of section 132 of Civil Procedure Code, the Courts are called upon to apply the customs and manners prevailing at the relevant time as the criterion and not the custom and manner which prevailed in the remote past and by passage of time were lost in oblivion. The society was undergoing the process of constant changes and transformations of the customs and manners regulating it. Many a rules in the past were in disuse now. Illiteracy of womenfolk was fast vanishing today. General rule observed today was to import to them modern education for equipping them to successfully shoulder the responsibilities in future. Women were holding high positions ,in different departments and occupations. Examples could be multiplied by reference to various fields. Defendants being the widow of an Air Vice Marshal, must be an educated lady. No other person than her son admitted that she often appeared in public and attended public functions and parties. Trial Court believed it and observed that she was not a Parda observing lady precluding her personal appearance in Court for making of her statement. As for her ailment, there was no proof of it. She had a common defence with her son‑defendant. It was for her to consider, whether she could confide in her son‑defendant to act for her as her special attorney to appear in Court and record statement on her behalf also. As for her examination on commission and exemption from appearance in the Court under section 132, Civil Procedure Code she was not entitled to such concession. Ch. Shaukat Mahmood Ramay, Advocate. A civil suit for the administration of the estate left by late Air Vice Marshal was instituted by his son against his other heirs i.e. the plaintiff's mother and brother. Sisters of the deceased and the progeny of one of the sisters were also impleaded in the suit as defendants. Suit was contested. Defendants Nos.1 and 2, namely, Begum Farkhanda Akhtar and Muhammad Asad Akhtar, the widow and son of the late Air Vice Marshal submitted a joint written statement and controverted the averments in the plaint. Contentious pleadings were reflected in number of issues settled by the trial Court on 1‑10‑1989. The plaintiff concluded his affirmative evidence but the defendants had riot led their evidence so far. From the written reply submitted to the application for appointment of a local commissioner to record the statement of defendant No.1, it appeared that the trial Court had provided a last opportunity for defendants' evidence who, at this stage of the trial, had submitted an application under Order XXVI, rule 2 of Civil P.C. on behalf of defendant No.1 for her examination by a local commissioner. By the impugned order, passed on 4‑11‑1993, the trial Court turned down the request. Its order is sought to be revised in revision at the instance of defendants Nos.1 and

2. I have heard the learned counsel. He referred to two cases reported as PLD 1974 Azad J & K 106; 1987 CLC 2372 for claiming an exemption from personal appearance in Court for making of a statement under section 132 of Civil P.C. They were not close parallels for decision of the point at issue in this case. The question was, whether defendant No.1 was a woman who according to the customs and manners of the country ought not to be compelled to appear in public for personal appearance in Court for her vivavoce examination. The customs and manners of the country mean the customs and manners of different communities and walks of people. Further, in order to determine whether a particular woman was or was not entitled to the protection under subsection (1) of section 132 of Civil P.C. the customs and manners prevailing at the relevant time, the Courts are called upon to apply them should be the criterion and not the custom and manner which prevailed in the remote past and by passage of time were lost in oblivion. The society was undergoing the process of constant changes and transformations of the customs and manners regulating it. Many a rules in the past were in disuse now. Illiteracy of women‑folk was fast vanishing today. General rule observed today was to impart them modern education for equipping them to successfully shoulder the responsibilities in future. Women were holding high positions in different departments and occupations. Examples could be multiplied by reference to various fields. Deceased was an Air Vice Marshal. Presumably, his widow must be an educated lady. No other person than her son said that she often appeared in public and attended public functions and parties. The trial Court believed .it and observed that she was not a Parda‑observing lady precluding her personal appearance in Court for making of her statement. As far her ailment, there was no proof of it. She had a common defence with her son‑defendant No.2. It was for her to consider, whether she could confide in her son‑defendant No.2 to act for her as her special attorney to appear in Court and record statement on her behalf also. As far her examination on commission and exemption from appearance in Court under section 132, Civil P.C. in my opinion, the trial Court had rightly turned down the request. Cases reported in AIR 1966 Andhra Pradesh 222, AIR 1979 Andhra Pradesh 30 were in point. Considering that the system of observing Parda in its orthodox form was being relaxed throughout the country and women are coming out in public, I see no reason to interfere with the order of learned Civil Judge and dismiss the civil revision in limine. However, the learned Civil Judge may examine defendant No.1 in his Court after excluding members of public unconnected with the suit or in his Chamber to avoid any offence to the sense of privacy of, defendant No.1. AA./F‑169/L Order accordingly.