Meena Devi v. Savita Paul

1. This is defendant’s application under Article 227 of the Constitution of India for setting aside the order dated 24.06.2013 passed by learned Munsif, Sadar, Purnea in T.S. No. 2 of 2009, whereby her application for appointment of a Pleader Commissioner to record her cross-examination at her own residence, has been rejected.

2. The petitioner, claiming to be a Pardanashin lady, filed an application for appointment of Pleader Commissioner at the cost of the plaintiff, at her own residence expressing her inability to attend the Court. By the impugned order, the Court below rejected the application on the ground that she did not come within the definition of Pardanashin lady and while holding this, the Court below took into account the fact, inter alia, that she had come to the Civil Court to execute Vakalatnama personally and, Patna High Court CWJC No.16653 of 2013 (3) P2/5 therefore, it could not be said that by any customs or manners, she was unable to appear in public and therefore exempt from appearance in Court.

3. Learned counsel for the petitioner submits that the Court below, by the impugned order, is compelling the petitioner to appear before the Court for cross-examination, though she does not want to appear before other persons. He further submits that a similar petition filed by the Respondent / Plaintiff for appointment of Pleader Commissioner to depose in the suit on commission at her residence was allowed vide an order dated 20.08.2011 by the same Court and, therefore, the petitioner’s application ought to have also been allowed for appointment of a Pleader Commissioner for the purpose of her cross-examination. He has submitted that no prejudice would have been caused to the other side, had Pleader Commissioner been appointed for the purpose of cross-examination of the petitioner.

4. I have perused the impugned order. It appears that the Court below on consideration of the petition filed by the petitioner and the rejoinder filed by the Respondent and other facts, came to the conclusion that the petitioner did not come under the definition of pardanashin lady as it did not appear from her conduct that she lived with seclusion. Patna High Court CWJC No.16653 of 2013 (3) P3/5

5. Section 132 of the Code of Civil Procedure (hereinafter referred to as the ‘Code’) mandates that a woman 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. From bare reading of Section 132 of the ‘Code’, it will appear that once it is established that by virtue of customs and manners of the country, such woman should not compelled to appear in public, it would be mandatory for the Court or grant exemption to such woman from her personal appearance in Court, applying Section 132 of the ‘Code’. Order XXVI Rule I confers jurisdiction upon the Court to issue a commission for examination of any person within the local limits of its jurisdiction who is exempted under this ‘Code’ from attending the Court. Order XXVI Rule 4-A confers a wide discretion upon a Court to issue commission in any suit for examination of any person residing within the local limits of its jurisdiction in the interest of justice.

6. It is not the case of the petitioner that by virtue of any customs and manners of the country, she could not be compelled to appear in public. Thus, she cannot claim exemption under Section 132 of the Code from personal appearance in Court. Jurisdiction to issue commission under Order XXVI Rule 4-A is Patna High Court CWJC No.16653 of 2013 (3) P4/5 purely discretionarily which vests in the Court. From the impugned order, it appears that the Court below after considering the petitioner’s case refused to issue commission for cross- examination of the petitioner, who is the defendant in the Court below. The Court has a discretion to grant or refuse commission, nevertheless, such discretion has to be exercised judicially. I am of the view that the presence of witness who is himself or herself is party to the suit should normally not be dispensed with, except for certain substantial and exceptional reason. The presence of a witness, who is himself or herself a party to the suit, in the Court is important for so many reasons. In such circumstance, the refusal by the Court below to issue commission for cross- examination of the petitioner by exercising discretion vested in the Court under Order XXVI Rule I or for that matter Rule 4-A of the Code cannot be said to have not been exercised judicially.

7. The submission made on behalf of the petitioner that no prejudice would have been caused to the other side, had commission been issued for cross-examination of the petitioner and, therefore, commission should have been issued cannot be accepted. It is not the question of prejudice but the procedure prescribed for trial and discretion vested in the Court under the ‘Code’ for the purpose of such trial. If the Court thought it proper Patna High Court CWJC No.16653 of 2013 (3) P5/5 that the petitioner, who herself is the party to the suit, should be cross-examined before the Court, no issue of prejudice can be raised as the trial Court is the best judge to decide such aspect. The plea that the petitioner’s application for issue of commission should have been allowed as such application was allowed in case of the Respondent cannot be accepted. Issue of commission for the purpose of cross-examination cannot not be taken as a matter of right. The Court has to exercise discretion on the basis of individual facts.

8. In view of the above, I do not find any merit in this application. This application is accordingly dismissed. Saif/- (Chakradhari Sharan Singh, J.)