MOTIBAI Vs. CHAMPALAL

JUDGEMENT

(1.) THIS is Defendant's revision against an order passed by the Additional Civil Judge, 1st class, Indore city.

(2.) 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 Mohammed Ismail v. Wazir Bi Bi Saheba : AIR 1951 Mad 311(B). 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.

(3.) 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.