1. This revision-petition is filed by the plaintiffs.
2. The petitioner Gyarsibai and her husband Bherulal filed a suit against the opponents 1 and 2 to recover a sum of Rs. 278-5-0 inclusive of interest in the Court of the Small Cause Judge, indore. The suit was resisted by the defendants, amongst others, on the ground that they had paid a sum of Rs. 100 to the petitioner Gyarsibai towards the claim in suit.
3. The defendants examined their witnesses first to prove their case. The plaintiffs had then to rebut the defendants' evidence and wanted to examine plaintiff No. 1 on their behalf.
4. On 10-10-1956 the plaintiff Gyarsibai applied for her examination on commission. In the application she alleged that according to the custom of her community, she does not move out and appear in public, and prayed to the Court that her statement be recorded on commission.
5. The defendants opposed this application whereupon the trial Court by its order dated 10-11-1956 rejected it. Aggrieved by this, the petitioners have preferred this revision application.
6. It was contended by Mr. Chafekar, learned Counsel, who appeared on behalf of the petitioners, that the petitioner Gyarsibai does not appear in public and in view of the language of Section 132, Civil P. C., cannot be compelled to do so. The learned Counsel referred to the view taken by this Court in Chandrani Bahoo v. S Hukumchand Jain, AIR 1953 Nag 37 (A).
7. Section 132, Civil P. C., exempts from personal appearance in Court, a woman who according to customs and manners of the country, ought not to be compelled to appear in public. The Court has thus no jurisdiction to compel the appearance of a woman who according to the customs and manners or the country, ought not to be compelled to appear in public. This aspect of the matter has been considered in AIR 1953 Nag 37 (A). In that case also the plaintiff Chandrani Bahoo applied for commission to examine herself and the prayer was allowed by the Court. The examination on commission was not complete when the Court passed an order that she should be produced in Court. The plaintiffs approached the High Court in revision against that order. Sen J. who heard the revision-application held :
'I consider that once it is made out that the party whose examination on commission is sought is a Pardanashin woman and, according to the customs and manners of the country, does not appear in public, she cannot be compelled to appear in Court.'
8. The learned Judge further held that if the Court ordered a Pardanashin woman who, according to the customs and manners of the country, does not appear in public, to appear in Court, it would be acting illegally in exercise of the jurisdiction.
9. In view of the language of Section 132 and theview taken by the High Court of Nagpur in theaforesaid case, it must be held that the plaintiffGyarsibai cannot be compelled to appear in Courtin case it is found that according to the customsand manners of the country she does not appearin public.
10. The trial Court has, I am told, not examined any evidence in this case to satisfy itself as regards the allegations that the plaintiff is a Pardanashin woman and does not appear in public, but has referred to some statement made byher husband Bherulal in another case wherein he has stated that his wife sits on the shop and sells goods. Now this was improper and contrary to the provisions of law. The statement of Bherulal was not on record of the present case and could not be made use of by the learned Judge.
11. I am satisfied that the order of the learned Small Cause Judge cannot be supported and must be set aside.
12. I allow the revision-application, set aside the order of the trial Court and send back the case with a direction that the trial Court will allow the plaintiffs to produce such evidence as they like to satisfy the Court that according to the customs and manners of the country, Gyarsibai does not appear in public and then to dispose of the application bearing In mind the provisions of Section 132, Civil P. C., and the principle laid down by the Nagpur decision referred to above.
13. In the circumstances of the case I direct the parties to bear their own costs in this case.