AYISHA BEEVI Vs. BAVA HAJI

JUDGEMENT

(1.) I think the application of the petitioners-plaintiffs for their examination as witnesses on commission ought to have been allowed. The petitioners are Moplah women belonging to a family of some status and it is notorious enough that according to the prevailing customs and manners they are pardanashin women who ought not to be compelled to appear in public. It was alleged by the defendant, the divorced husband of the 2nd petitioner, that she was a person accustomed to appear in public-no such allegation was made with regard to the 1st petitioner. But the court below found against this allegation and that being so it follows that a commission should have issued under Or, xxvi R. 1 read with S. 132 (1) of the Code. This result follows from the very decision on which the court below has relied in dismissing the application, namely, 1950 II M. L. J. p. 385 and the circumstance on which that decision turned, namely, of the gosha woman in question, who was a party to the suit having abandoned gosha and being willing to go to the house of counsel for the opposite party to be examined on commission, does not here obtain.

(2.) I allow this petition and grant the application of the petitioners with costs here and in the court below. Allowed.