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M.E. Balkis Beevi Ammal Vs. Jubeda Beevi Ammal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1971)2MLJ130
AppellantM.E. Balkis Beevi Ammal
RespondentJubeda Beevi Ammal and ors.
Cases ReferredMohamad Ismail Maracair v. Wazir Bibi Saheba
Excerpt:
- .....gosha and therefore there is no impediment to her coming into court to give evidence. the learned subordinate judge dismissed the application. the above revision petition is filed against the said order. it is contended on behalf of the petitioner that a commission to examine a person who falls within the class of woman described in section 132(1), civil procedure code, should issue as a matter of course and the learned counsel draws my attention to the case of mohammad ismail maracair v. wazir bibi saheba : air1951mad311 . the learned subordinate judge while referring to the above decision held that because the first plaintiff who is the second wife and younger to the defendant does not observe gosha the defendant who is the first wife and older cannot be said to be in gosha. i.....
Judgment:
ORDER

V.V. Raghavan, J.

1. The defendant is the petitioner. The suit is for declaration of title to the suit house and an injunction restraining the defendant from interfering with the plaintiff's possession and alternatively for possession. The first plaintiff and the defendant are the wives of one Mohammad Sheriff Rowther. The defendant claiming to be a pardanashin lady filed I. A. No. 167 of 1970 to have her examined on commission on the ground that she strictly observes gosha, and therefore unable to attend Court and give evidence. In the counter affidavit filed the respondent-plaintiff contended that the defendant is seen travelling in buses and freely moving outside in Kothanallur and neighbouring villages and therefore she is not a lady observing gosha and therefore there is no impediment to her coming into Court to give evidence. The learned Subordinate Judge dismissed the application. The above revision petition is filed against the said order. It is contended on behalf of the petitioner that a commission to examine a person who falls within the class of woman described in Section 132(1), Civil Procedure Code, should issue as a matter of course and the learned Counsel draws my attention to the case of Mohammad Ismail Maracair v. Wazir Bibi Saheba : AIR1951Mad311 . The learned Subordinate Judge while referring to the above decision held that because the first plaintiff who is the second wife and younger to the defendant does not observe gosha the defendant who is the first wife and older cannot be said to be in gosha. I do not understand the logic of the reasoning of the learned Subordinate Judge. Judicial notice may be taken of the fact that younger Muslim ladies in modern times discard gosha, but it is illogical to infer therefrom that older Muslim ladies also do not observe gosha. I, therefore set aside the order of the lower Court and direct the defendant to be examined by the learned Subordinate Judge in chambers, as directed by his Lordship Raja-mannar, C.J., in Mohamad Ismail Maracair v. Wazir Bibi Saheba : AIR1951Mad311 . The revision petition is allowed. There will be no order as to costs.


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