MOHAMMAD ISMAIL MARICAIR Vs. WAZIR BI BI SAHEBA

JUDGEMENT

(1.) THIS is a petition foe revising the order of the District Munsif of Vel -lore directing that the plaintiff in O. S. No. 406 of 1948 on his file be examined on commission in the house of the counsel for the defendant. An advocate was appointed commissioner to examine her. The suit was for the recovery of a jewel or its value, and the amount alleged to be due on a band loan from the defendant. Inthe affidavit filed by the plaintiff in support of the application for the issue of a commission to examine her, she stated that she was a Muslim gosha lady and according to the law and custom among her people, she did not attend Court. She prayed that she may be examined at her residence. The defendant filed a counter affidavit in which he did not deny the statement of the plaintiff that she was a purdhanashin lady. The application was, however, opposed on the ground that its purpose was to substitute some one else in place of the plaintiff behind the purdah. It was suggested that the plaintiff should be made to appear in Court and despose before the Court after the work of the day was over, if necessary, in camera. The District Munsif made the following cryptic order : 'It is alleged that the plaintiff might be examined on commission in the house of P. K. Chandrasekhara Aiyar counsel for defendant. Therefore Mr. N. Subra -mania Sastri, advocate, 19 appointed as commissioner to examine plaintiff on commission.' The defendant seeks to have this order revised.

(2.) IT is difficult to understand what the Munaif meant in saying that it was 'alleged' that the plaintiff might be examined in the house of the counsel for the defendant. Possibly be meant that it was agreed by both sides. If that be so, the defendant is not now entitled to complain and the petition must be dismissed. But the petition before us was argued on the assumption that there was no such agreement. When the revision petition came on for hearing before Krishnaswami Nayudu J. the learned Judge considered that the revision petition raised a question which it was desirable should be decided by a Division Bench, because of the conflicting views taken by single Judges of this Court as to the scope and extent of the applicability of Section 132(1), Civil P. C., (hereinafter referred to as the Code).

(3.) THE learned Judge went on to say that customs and manners of a country go on chang -ing. I agree. And I also agree that in order to decide whether a particular woman is or is not entitled to the benefit of Section 132(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. This construction of the section is not really a fresh judicial interpretation, but the only reasonable interpretation. The learned Judge found it difficult to be bound in the yean 1949 by decisions dating from the year 1899 as regards the interpretation of Section 132 of the Code. If he meant that a decision holding that a woman of a particular community ought not to be compelled to appear in public according to the customs and manners of the country then prevailing cannot be binding for all time as regards women of that community, I agree. But once the question of fact -is decided and it is found that a particular woman falls within the class mentioned in Section 132(1), I fail to see why we should disregard the interpretation of the scope of the provision by learned Judges in 1899.