Skip to content


Kalian Bibi and anr. Vs. Safdar HusaIn Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1886)ILR8All265
AppellantKalian Bibi and anr.
RespondentSafdar HusaIn Khan and ors.
Excerpt:
pardah-nashin - civil procedure code, sections 129, 136--discovery of documents. - - this mukhtar appeared under a special powers of attorney, executed and registered in this behalf under the hands of the two ladies on the 27th and 98th march 1885. the judge found the affidavit and list of the 1st april defective, because (i) it was not made personally by the plaintiffs, (ii), because it disclosed only documents connected with the issues on the record, and (iii) because it disclosed only documents in possession of the ladies and failed to disclose or menton documents once, but not at present, in their possession......to the 16th april 1885, to amend these defects. on the 15th april, the plaintiffs filed before the judge an affidavit purporting to be made by them personally, praying that 'the court may have it verified in the manner it thinks proper, provided petitioners' pardah-nashin is not interfered with.' on the 27th april the judge disposed of that petition and of the suit by his order which is now appealed to us. it runs as follows:' the order of this court not having been complied with, although ample opportunity has been given to the plaintiffs, and no sufficient ground for non-compliance having been shown, i have no alternative, much as i regret the necessity, hut to exercise the power given me by section 136, act xiv of 1882, and to direct that the suit be dismissed for want of prosecution,.....
Judgment:

Straight, Offg. C.J. and Turrell, J.

1. The appellants, two Muhammadan pardah ladies, brought a suit in the District Judge's Court at Gorakhpur, on the 10th June 1881, for recovery of lauded property by their right of inheritance to part of the estate of one Muhammad Wazid. The suit was dismissed as barred by limitation. But in first appeal it was remanded for re-trial under Section 562, Civil Procedure Code. When the case was restored in the Court below, and camp on for trial, the Judge made an order under Section 129,. Civil Procedure Code, requiring the plaintiffs-appellants to 'produce with an affidavit all the papers connected with the points at issue in the cane which were or had been in their possession or under their control.' After s me ineffectual proceedings, the plaintiffs were ordered to file their affidavit peremptorily on the 1st April 1885. On that date an affidavit was filed on of half of the plaintiffs by their mukhtar and brother Kazi Muhammad Ikram Ali, with a list of their documentary evidence. This mukhtar appeared under a special powers of attorney, executed and registered in this behalf under the hands of the two ladies on the 27th and 98th March 1885. The Judge found the affidavit and list of the 1st April defective, because (i) it was not made personally by the plaintiffs, (ii), because it disclosed only documents connected with the issues on the record, and (iii) because it disclosed only documents in possession of the ladies and failed to disclose or menton documents once, but not at present, in their possession. Therefore the Judge gave the plaintiffs further time to the 16th April 1885, to amend these defects. On the 15th April, the plaintiffs filed before the Judge an affidavit purporting to be made by them personally, praying that 'the Court may have it verified in the manner it thinks proper, provided petitioners' pardah-nashin is not interfered with.' On the 27th April the Judge disposed of that petition and of the suit by his order which is now appealed to us. It runs as follows:' The order of this Court not having been complied with, although ample opportunity has been given to the plaintiffs, and no sufficient ground for non-compliance having been shown, I have no alternative, much as I regret the necessity, hut to exercise the power given me by Section 136, Act XIV of 1882, and to direct that the suit be dismissed for want of prosecution, and I now make an order to that effect, with costs, and the usual interest thereon.'

2. Without going into the question of the sufficiency or insufficiency of the action of the plaintiffs with regard to the orders made under Section 129 of the Court, it is enough here to say that, looking at the disabilities of the plaintiffs and the circumstances of their suit, it appears to us that the case was not one in which it was expedient to enforce the liability to which they may have exposed themselves under the peculiar provisions of Section 136 of the Code.

3. We therefore allow the general [ilea of the appellants, and, decreeing this appeal, remit the case for trial to the Court below. The costs here will be costs in the cause.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //