JUDGMENT Rachhpal Singh, J.
1. This is a plaintiff's appeal arising out of a suit which she instituted against defendants, 1 and 2 in the Court of the Subordinate Judge of Jaunpur and which has been dismissed. The plaintiff in this case is one Mt. Sundar Devi. Dattatraya Narhar Rege, defendant 1, is a solicitor practising in Bombay. According to the plaintiff, Permeshwar Din, defendant 2, is an agent of defendant 1.
2. On 23rd November 1927, defendant 1 obtained a decree from the Bombay High Court for a sum of money against Mt. Sundar Devi, plaintiff. The plaintiff, who resides in Benares, instituted a suit against the two defendants in the Court of the Subordinate Judge of Jaunpur to obtain a declaration to the effect that the aforesaid decree, for the reasons given in her plaint, was not binding upon her. After the issues had been settled in the case, a commission was issued for recording the evidence of the plaintiff and one Mt. Lakhpati at Benares. The statement of the plaintiff was recorded. While Mt. Lakhpati was being examined it was suspected by the counsel for the defendants that there was some one else with Mt. Lakhpati Devi behind the parda, who was tutoring her. This suspicion of the defendant's counsel was brought to the notice of the Commissioner. The Commissioner went behind the parda and found one person ascending the staircase near the spot where Mt. Lakhpati had been sitting. The defendants' counsel stopped further cross-examination of Mt. Lakhpati and made a written application to the Commissioner to report the matter to the Court. This application was made on 22nd September 1928, and is printed at pp. 4 and 5 of the supplementary paper book. The Commissioner sent the record to the Court.
3. On 20th November 1928, the defendants made an application to the Court mentioning the above-mentioned facts and praying that they should be given an opportunity to further cross-examine not only Mt. Lakhpati but also the plaintiff. They asked the Court to order that both the plaintiff and Mt. Lakhpati should present themselves in Jaunpur where they might be further examined in parda either in Court or some other suitable place. The Court directed the plaintiff to file written objections by 29th November 1928. No objections were filed on behalf of the plaintiff. But it may be pointed out that on 11th November 1928, after the Commissioner had returned the commission, the plaintiff had made a petition to-the Court. In that petition, while denying the allegations of the defendants that there had been any tutoring of Mt. Lakhpati behind the parda, she expressed her readiness to tender Mt. Lakhpati for further cross-examination if so ordered. The case was taken up by the Court on 12th December 1928.. The Court ordered the defendants:
to suggest a date and place in Jaunpur town on. which the two witnesses mentioned in Application No. 201 shall be recross-examined.
4 After this the case was again taken up on 18th December 1928. The Court's order is:
Mr. Asharfi Lal for the plaintiff wants time to inform the Court as to which date will suit the plaintiff, Mt. Sundar Devi, for her appearance at Jaunpur for further cross-examination. Fix 2-l-'29.
5 The case was taken up again on 2nd January 1929. On this date, the pleader for the plaintiff informed the Court that he had no instructions from the plaintiff who was not present. One Sankatha Prasad filed an application on behalf of the plaintiff asking for time. The Subordinate Judge directed the plaintiff to attend the Court on 5th January 1929. In its order, he stated as follows:
The conduct of the plaintiff as reported by the Commissioner is highly objectionable. The only course open is now to direct the plaintiff, Mt. Sundar Devi, to attend in person on the 5th instant when she will be questioned about the case on the points raised by the defendants. Further orders shall be made on that date. In case of non-appearance she will bear the legal' consequences.
6 On 5th January 1929, the plaintiff did not appear. The learned Subordinate Judge dismissed the suit. The Court below in its judgment says that:
as she had not entered appearance as directed, the suit is dismissed for default of prosecution with costs.
7 The present appeal has been preferred by the plaintiff against this order of dismissal of the suit. I am of opinion that the order of the learned Subordinate Judge is wrong and cannot be sustained. Section 132, Civil P.C., lays down that 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 attendance in Court. The exemption from personal appearance under this section is a right which no Court has power to refuse, and applies to the parties as well as witnesses. In a Madras case reported in Vellai Nachiar v. Miyappa Chetty AIR 1925 Mad 905, it was held that the lower Court was clearly wrong in seeking to compel the personal attendance in Court of a pardanashin lady. I may say here that in a Calcutta case reported as Re Bilasory Sirowgee AIR 1919 Cal 528 a Single Judge of that Court took the view that the word "appearance" means that a pardanashin lady shall not be compelled to come forth into view or to become visible to the public gaze, and that the Court therefore has powers to order a pardanashin lady to give evidence in Court provided she is not compelled to become visible to the public gaze. With all possible respects to the opinion of the learned Judge, I am of opinion that the view taken by him is not correct. The words used in Section 132, Civil P.C, are that 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 attendance in Court. The words "ought not to be compelled to appear in public" are important. If a pardanashin lady observing strict parda is ordered to attend the Court, it means that she is "compelled to appear in public." Her face may be covered or she may be wearing a burka, but all the same she is compelled to appear in public if she is ordered to attend the Court. This is against the spirit of Section 132, Civil P.C. In families in which ladies observe strict parda, it is considered most objectionable for them to appear in public even with their faces covered.
8 I am of opinion that the words "personal appearance" used in Section 132 mean "personal attendance." In this connexion we may look to Rule 1, Order 26, Civil P.C, which empowers a Court to issue commission for the examination of witnesses who are exempted under this Code from attending the Court. Among those so exempted are women, who, according to the customs and manners of the country, ought not to be compelled to appear in public. A Court has no power to insist that a pardanashin lady must attend and give evidence in Court. It is the right of a pardanashin lady to refuse to attend the Court and to say that if she is to be examined, her statement should be taken on commission. If the view taken by the Calcutta High Court in the aforesaid case were correct, Rule 1, Order 26, Civil P.C., would become useless. I hold that the correct view is that under the provisions of Section 132, Clause 1, Civil P.C, a : pardanashin lady cannot be compelled to attend the Court either as a party or as a witness. I therefore decide that the learned Subordinate Judge acted wrongly in going against the provisions of Section 132, Civil P.C. in insisting on the personal attendance of the plaintiff in Court.
9 It was urged by the learned Counsel appearing for the defendants that the Court had the power to order the plaintiff to attend under the provisions of Rule 3, Order 5, Civil P.C. I am of opinion that Rule 3, Order 5, Civil P.C., is confined to those cases in which the Court, before issues are framed, derites, for some reason, the personal attendance of a party. In the case under appeal that stage had passed. Nor do I think that a Court, acting under Rule 3, Order 5, Civil P.C, can compel the attendance of a party who is pardanashin. Such an order would be against the provisions of Section 132, Clause 1, Civil P.C. It was also contended on behalf of the respondents that the Court acted under Rule 4, Order 10, Civil P.C. I disagree with this contention. Under this rule, a Court can order the attendance of. a party only where his or her counsel. is unable to answer material questions. In the case before us, the record does not show that the counsel appearing for the plaintiff was unable to answer any questions which the Court put or wished to put to him. I also think that under the provisions of Rule 4, Order 10, Civil P.C., the Court cannot insist on the personal attendance of a party who is a pardanashin lady. Coming to the merits of the case, I am clearly of opinion that the order of the learned Subordinate Judge directing the personal attendance of the plaintiff was unwarranted. The statement of the plaintiff had been finished before the Commissioner. When Mt. Lakhpati was being cross-examined, the counsel for the defendants suspected that there was someone behind the parda along with the witness, who was perhaps tutoring her. The cross-examination was stopped and the matter was reported to the Court. The plaintiff put an application denying the allegations of the defendants. That application is dated 11th November 1928, and is on record.
10 If the learned Subordinate Judge thought that there was any substance-in the allegations of the defendants, he could have directed her evidence-being recorded again with such precautions and safeguards as seemed reasonable consistently with her right to be exempt from appearance in Court. It was also open to him to refuse to admit the statement of Mt. Lakhpati in evidence, if he considered that a case had been made out for its exclusion. Where a fraud of the kind alleged by the defendant is established, the Court has undoubtedly the discretion to exclude the evidence. But there was no justification for the learned Subordinate Judge to insist on the attendance of the plaintiff in Court. The remarks of the Court below in the judgment that:
there can be no doubt that the plaintiff is protracting the litigation and avoiding to give the defendants a fair chance of cross-examining her or her other witness.
are not correct. The plaintiff was cross-examined by the defendants at length and her statement was finished by the Commissioner. It is the defendants who wanted a fresh opportunity for further cross-examination of the plaintiff. It was for them to make out a case entitling them to further cross-examine the witness. As regards the other witness we have the application of the plaintiff dated 11th November 1928, in which she offered to produce Mt. Lakhpati on any date which the Court might fix. The learned Subordinate Judge seems to have lost sight of this application. On the date on which the Court dismissed the suit, the pleader for the plaintiff was present in Court. The Court dismissed the suit because the plaintiff had not entered appearance as directed. The case falls under Rule 3. Order 17, Civil P.C. The order amounts to a decree. In my opinion, the Court should not have dismissed the suit in a summary manner. The pleader for the plaintiff was present. After deciding the question as to whether or no, the statements of the witnesses examined on commission should be admitted in evidence, the Court should have disposed of the case on the materials before it.
11. For the reasons given above, I am of opinion that the decree passed by the Court below is bad and must therefore be set aside. The appeal is allowed, the decree passed by the learned Subordinate Judge is set aside and the case is sent back to the trial Court with directions that it should be readmitted at its original number and then proceedings should commence from the stage at which the suit was dismissed. The defendants will pay the costs of the appellants in this Court.
Niamatullah, J.
12. I concur.