MT BIBI UMA SALAMA Vs. SYED HASAN IMAM

JUDGEMENT

(1.) THIS is an application on behalf of the defendant who is the wife of the plaintiff in a suit for restitution of conjugal rights filed at Ranchi. The prayer is that the commission which has been issued by the Court below for her examination at Ranchi should be converted into a commission for her examination at Khagoul where she is at present residing. The plaintiff is a resident of Dehri, police station Poonpoon, district Patna, and the defendant, as I have said, is residing at Khagoul although she is a resident of Mauza Kopa, police station Bikram, district Patna. She filed a petition on 26 February 1936, praying for a commission to examine her at Khagoul. The Court below on the objection of the plaintiff ordered that she should go to Ranchi for her examination. After various orders having been passed in the case, another petition was filed by the defendant on the 26 of March to be examined on commission on the ground of illness of one of her sons. There were one or two more petitions till we come to the last date, 4 May 1936, when on that date she put in a petition supported by affidavit and a medical certificate saying that she was ill and praying for time and the Court again insisted that she should be examined in the town of Ranchi on commission.

(2.) IN dealing with this petition, it must however be remembered that she is a pardanashin lady and she is residing beyond the jurisdiction of the Court that is trying the case. Mr. Azizullah appearing on behalf of the plaintiff urges that this is not a case in which this Court should interfere in as much as no question of jurisdiction arises and the order of the Court below that the lady should be examined on commission at Ranchi is not without jurisdiction and should not be interfered with, especially when the lady has not, according to Mr. Azizullah, raised any objection to her being examined at Ranchi. IN the case of a pardanashin lady a commission usually issues for her examination, especially when she is residing beyond the jurisdiction of the Court. The Court itself realised that it was necessary to issue a commission and therefore on the prayer of the lady the Court did issue a commission; but the trouble is that the Court insisted upon the commission being executed at Ranchi. Perhaps the lower Court did not realize that the whole object of the issue of a commission fails if the witness has to go to the Commissioner at a place where the Court is sitting and the Commissioner does not go to the witness. Once the principle is recognised that a commission should issue for the examination of this witness, I do not see by what process of reasoning the order is limited to the examination of the lady in Ranchi town. This is certainly an irregular exercise of jurisdiction by the Court below and I am supported in this view by several reported decisions but I would content myself by referring to the case in Visvanathan Chetty V/s. Somasundaram Chetty AIR 1924 Mad 541. It has been said that she never objected to go to Ranchi. The more important point to see is whether she ever agreed to go to Ranchi. IN her very first petition of the 26 of February, she prayed that she should be examined at Khagoul and in the petition before this Court she makes the same prayer. There is nothing in between these two dates from which one can infer that she was ever agreeable to be examined at Ranchi. IN the result I would order that a commission do issue to examine this lady at Khagoul as requested by her in the very beginning and the order of the Court below for the issue of a commission for her examination at Ranchi be modified to that extent. It is for the Court below to fix a reasonable amount of cost that has to be realised from the defendant for her examination on commission. The application is allowed. Hearing fee one gold mohur.