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Rukmani Devi Vs. Shanti Aggarwal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Revision No. 555 of 1981
Judge
Reported in1983(4)DRJ35; 1982RLR813
ActsCode of Civil Procedure (CPC), 1908 - Sections 132
AppellantRukmani Devi
RespondentShanti Aggarwal and anr.
Advocates: B.S.C. Singh,; Jagmohan Sharma and; K.K. Chaudhry, Advs
Excerpt:
code of civil procedure, 1908 - section 132 & order 26, rule 1.whether a women is pardanashin is a question of fact which must, if in dispute, decided on evidence adduced. if the application is not supported by an affidavit, opportunity for filing affidavit or adducing evidence must be given.the court having allowed the examination of a witness a pardanashin, on commission has no jurisdiction to compel her appearance before the court for cross-examination on the application of the defendant without hearing the petitioner. - - (6) on 20th july, 1979 an application was made by the defendant under section 138 of the evidence act read with section 151 of the code, alleging that notice by the local commissioner was not given well in advance;.....20th april, 1979 allowed her to be examined on commission, by shri r.p. kapur, advocate.(5) the local commissioner fixed 7th july, 1979 at 5.30 p.m. for recording her statement at her residence. the plaintiff and defendant were served with the notice by the local commissioner, who recorded the examination-in chief on 7th july, 1979 but as there was no appearance on behalf of the defendant she could not be cross-examined.(6) on 20th july, 1979 an application was made by the defendant under section 138 of the evidence act read with section 151 of the code, alleging that notice by the local commissioner was not given well in advance; his counsel was served on 7th july, 1979, to appear before the local commissioner at 5.30 p.m. on that date, that he did not receive any notice or.....
Judgment:

Sultan Singh, J.

(1) The petitioner, who was summoned as a witness challenge the order dated 25th May, 1982 of the Subordinate Judge 1st Class, Delhi issuing non-bailable warrant against her for appearance in court and also show cause notice to her surety. Briefly the facts are that originally Smt. Rukmani Devi the petitioner filed the suit for possession and mesne profits on 18th May, 1970 against Hari Parkash defendant-respondent No 2 alleging that she was owner of property No : 2962, Kucha Maidas Bazar, Sita Ram Bazar, Delhi and the defendant was in illegal possession of a room on second floor of the said property. The defendant pleaded that he was tenant under her in the said room on second floor. Smf. Rukmani Devi petitioner sold the property on 5th September, 1970 to Smt. Shanti Aggarwal. On an application being made the name of Smt. Shanti Aggarwal (resoon- dent No. 1) was substituted as plaintiff in place of the petitioner Smt. Rukmani Devi.

(2) On 21st March, 1977 the respondent No. 1 filed an application for examination of the petitioner as a witness on commission alleging that she was a Pardanashin lady ; she had never attended any court, and thereforee she be examined at her residence preferably by a lady lawyer as she was very orthodox. The defendant contested the application alleging that the petitioner was not a pardanashin lady. The court dismissed the application by order dated 6th May, 1977 on the ground that no affidavit in support thereof was filed. The plaintiff was however permitted to examine her as a witness in court. An application for review filed by the plaintiff on 26th May, 1977 was also dismissed by order dated 3rd December, 1977 on the ground that there was no error apparent on record.

(3) On 13th February, 1978 the petitioner herself made an application under Sections 132 and 151 read with Order 26 rule I of the Code of Civil Procedure (hereinafter referred to as 'the Code') alleging that she had been summoned as a witness for 17th February, 1978 that she was an orthodox Hindu lady observing Pardah, and according to custom and manner prevalent in her community, she did not appear in public or in court, that she was thereforee exempted from attending court personally. The defendant resisted the application and the court dismissed it on 6th March, 1978, without giving any reason for the same. It was not determined whether she was a Pardanashin lady.

(4) The court issued summons to the petitioner to appear as a witness. She made another application dated 17th March, 1979 that her husband had died on 19th August, 1978 and as per custom in the community she could not appear in public as she was a Pardanashin lady, that she could not appear as a witness for one year from the date of death other husband, that the custom of her community did not allow her to appear in public, that she had no intention to flout any order of the court but on account of practical difficulties she could not appear and prayed that a commission be issued for her examination. The defendant resisted this application also but the court by order dated 20th April, 1979 allowed her to be examined on commission, by Shri R.P. Kapur, Advocate.

(5) The local commissioner fixed 7th July, 1979 at 5.30 P.M. for recording her statement at her residence. The plaintiff and defendant were served with the notice by the local commissioner, who recorded the examination-in chief on 7th July, 1979 but as there was no appearance on behalf of the defendant she could not be cross-examined.

(6) On 20th July, 1979 an application was made by the defendant under Section 138 of the Evidence Act read with Section 151 of the Code, alleging that notice by the local commissioner was not given well in advance; his counsel was served on 7th July, 1979, to appear before the local commissioner at 5.30 P.M. on that date, that he did not receive any notice or information either from his counsel or the local commissioner that the statement of the witness without cross-examination could not form part of the record and be not read in evidence. In the alternative it was prayed that he may be allowed to cross-examine her. By order dated 5th September, 1979 the court granted the defendant an opportunity to cross-examine the- witness. On 10th October, 1979 a direction was given to the local Commissioner to record her statement in cross-examination on 5th November, 1979 at 5 P.M. and the defendant was required to pay Rs. 100.00 as fee to the local commissioner.

(7) The defendant on 31st October, 1979 made an application that the witness be ordered to appear in court for her cross-examination. The court by order dated 2nd November, 1979 stayed the proceedings before the local commissioner fixed for 5th November, 1979. No notice of this application was issued to the petitioner. The court by order dated 22nd April, 1980 directed the petitioner to appear as a witness in court. It appears that she was served for appearance in court for 31st March, 1981. The petitioner again made an application for her examination on commission which was summarily dismissed and a bailable warrant was issued for her appearance. A review application filed on 28th April, 1981 was also dismissed on 6th May, 1981 and the court issued non-bailable warrant by the impugned order dated 25th May, 1981, for her presence.

(8) Section 132 of the Code reads as under :

'1)Women who, according to the customs and manners of the country, ought not to be compelled to appear in public shall be exempt from personal appearance in court. 2) Nothing herein contained shall be deemed to exempt such women from arrest in execution of civil process in any case in which the arrest of women is not prohibited by this code.'

The phrase ''customs and manners of the country' mean current customs and manners not of the country as a whole but of the particular community class or section to which the womens belongs or it may be of a particular locality. Whether the woman is a pardanashin is a question of fact which must, if in dispute, be decided on evidence adduced. If affidavit has-not been filed in support of application for exemption under Section 132 of the Code,, opportunity of filing affidavit or adducing evidence must be given to the appellant. The order of the trial court dated 6th May, 1977 dismissing the application for want of affidavit was thus not according to law.

(9) The trial court by order dated 20 April, 1979 had allowed the petitioner to be examined on commission. In fact she was examined on 7th July, 1979 but she could not be cross-examined. The defendant was granted opportunity to cross-examine. This opportunity was given considering the fact that though the counsel for the defendant was served for appearance before the local commissioner but the counsel could not inform the defendant on account of paucity of time. The defendant did not pay fee to local commissioner but filed application for petitioner's appearance in the court for cross-examination. Initially order for examination on commission was passed on the application of the witness herself. No notice of the defendants' application was given to the petitioner and in her absence she was directed to appear in court by order dated 22nd April, 1980. The petitioner and respondent No. I made many applications for her examination on commission but it was resisted throughout by the defendant for the reasons known to him. One reason appears to be that the petitioner is the sister of the defendant's wife. She was originally the plaintiff She as the owner of the property filed the suit for possession against the defendant. His intention may be to harass the petititioner a pardanashin in court and also to delay the suit. The court having once allowed the examination of a witness a pardanashin, on commission being exempted from apearing in public within the meaning of Section 132 of the Code, has no jurisdiction to compel her appearance on the application of the defendant without hearing the petitioner. She is entitled as a matter of course to be examined on commission. Thus I am of the view that all proceedings taken by the trial Court on the application of the defendant dated 31st October, 1979 to examine the petitioner in court without notice to the petitioner and the orders issuing bailable and non-bailable warrants against the petitioner were without jurisdiction because the provisions of Section 132 of the Code were not complied with, and by order dated 20th April, 1979 she was allowed previously to be examined on commission on the ground that she was a pardanashin lady.

(10) Learned counsel for the defendant submits that the witness was served and as she did not appear, the court was justified in taking coercive steps by issuing bailable and non-bailable warrant to compel the presence of the witness. It is correct that if a witness avoides appearance before court coercive steps must be taken. But if the witness is a pardanashin lady, she cannot be compelled to appear in court as a witness. Once it has been held that a woman is a pardanashin lady she cannot be compelled to attend court in person. She cannot be compelled to attend court as a party or as a witness. The order passed by court in the absence of the petitioner on 22nd April, 1980 was thereforee without jurisdiction and must be set aside.

(11) No express order was ever passed by the trial court reversing the earlier order dated 5th September, 1979 read with order dated 10th Octobar, 1979 allowing the defendant to cross-examine the wilness i.e. the petitioner on commission, and directing the defendant to pay fees to the local commissioner. Under Section of the Code, woman who, according to the customs and manners of the country, ought not to be compelled to appear in public are exempted from personal appearance in court. Rukmani Devi, petitioner was allowed to be examined on commission for the re son that she was pardanashin lady. It does not stand to reason that once she has been allowed to be examined on commission how can she Le complled to appear in court subsequently. Learned counsel for the defendant submits that she was not in a position to come out of the house for one year only after the death of her husband and as the period of one year had expired she could be asked to appear in court. I do not agree. In her application for examination on commission she has stated that according to custom of her community she is not allowed to appear in public and that she cannot depose as a wilness in the case for one year after the death of her husband. The allegations in the application dated 17th March, 1979 do not mean that she could appear in public after the expiry of one year from the date of death of her husband. The plaintiff and the petitioner have always been submitting that the petitioner was a pardanashin lady and she was not in a position to appear or attend court. I thereforee hold that the trial court had no jurisdiction to issue bailable or non-bailable warrant for the personal appearance or attendance of the petitioner either as a witness or as a party in the case. The revision is accepted and the impugned order is thereforee set aside.

(12) By order dated 5th September, 1979 the defendant was granted an opportunity to cross-examine the witness on commission and by order dated 10th October 1979 the defendant was directed to pay Rs. 100.00 as fee to the local commissioner. I thereforee, direct that the petitioner be examined on commission by Mr. R.P. Kapur, Advocate who was earlier appointed as local commissioner in the case. The defendant shall pay Rs. 100.00 as fee to the local commissioner, as already fixed by the order dated 10th October, 1979 The trial court is directed to notify the local commissioner to fix date and time for cross-examination and re-examination of the witness. The plaintiff and the defendant shall be intimated by the local commissioner four days in advance for the execution of the commission. Respondent No. 2 defendant shall pay costs of this revision to the petitioner. Counsel fee Rs. 200.00 . The fee of Rs. 100.00 payable to the commissioner shall be paid by the defendant. If the defendant fails to pay the fee of Rs. 100.00 to the local commissioner the statement of the petitioner already recorded by the local commissioner shall be deemed complete and form part of the record. Parties are directed to appear in the trial court on 15th October, 1982.


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