2020 C L C 688
[Balochistan]
Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ
RAZIA BIBI ----Petitioner
Versus
MUHAMMAD YOUNAS BHATTI and 4 others ----Respondents
C.P. No. 1485 of 2018, decided on 27th August, 2019.
Civil Procedure Code (V of 1908) ---
----O.XXVI, R. 1, O.V, R. 3, Ss. 75 & 132--- Suit for declaration ---Pardanasheen lady ---
Appointment of local commission to record statement---Defendant moved application for
appointment of local commission to record her statement on the ground tha t she was a Parda
observing lady, which was dismissed---Validity ---Status and claim of being a Pardanasheen
lady by itself was a question of fact which had to be determined on the basis of evidence and material produced on record ---Defendant had executed s pecial power of attorney and filed
written statement as well as constitutional petition ---Nothing was on record that said
documents were attested at the residence of defendant which had negated her version--- Court
had discretion to appoint local commission depending on the facts of each case---Local
commission was to be appointed for the examination of a Pardanasheen lady unless her application was not based on mala fide or would not amount to an abuse of the process of the Court or it might not into injust ice to any party ---Court could not delegate powers to the
local commission to decide material issues where the matter should be decided by direct evidence--- Power to record such evidence could not be delegated to the local commission---
Findings recorded by the Courts below were neither perverse nor suffered from any illegality
or irregularity ---Constitutional petition was dismissed, in circumstances.
Sumera Abid and Syed Ikhlaq Shah for Petitioner.
Samad Khan Mandokhail and Asmatullah Mandokhail for Resp ondents.
Date of hearing: 5th August, 2019.
ORDER
ROZI KHAN BARRECH, J. ---Through the instant Constitution Petition, the
petitioner challenged the order dated 07.09.2018 (hereinafter "the Order") passed by the learned Senior Civil Judge, Zhob, (hereinaft er "the trial Court") and order dated 12.11.2018
(hereinafter "the impugned Order") passed by learned District Judge, Zhob, (hereinafter "the Revisional Court") whereby the application filed by the petitioner (defendant No.7) under
Order XXVI, Rule 1, C.P. C. for appointment of Local Commissioner to record her statement
was dismissed.
2. The facts giving rise to filing of this petition are, that the respondent No.7 (plaintiff)
filed a suit for declaration and permanent injunction before the Court of learned Senior Civil
Judge, Zhob, against the other respondents with the following prayer: -
"(i) That, this Hon'ble Court may kindly be declare plaintiff as a daughter of Muhammad
Yousaf Bhatti.
(ii) Any other relief which this Hon'ble court may kindly be deems fi t and proper may
also be awarded in favour of plaintiff".
3. The suit was contested by the other respondents as well as by the petitioner
(defendant No.7) on legal and factual grounds denying the claim of plaintiff (respondent No.7). During trial when the case was fixed before the learned Senior Civil Judge, Zhob, for evidence, the petitioner (defendant No.7) filed an application under Order XXVI, Rule 1, C.P.C. for appointment of Local Commissioner to record her statement on the ground that she is a Pardah observing lady and her husband is also sick, therefore, she is not able to appear before the Court to record her statement. The respondent No.7 (plaintiff) filed a rejoinder to the application denying claim of the petitioner (defendant No.7) on the gr ound
that entire case depends on the petitioner (defendant No.7) who in fact had expired as evident from the death certificate bearing S.No.025 vide dated 07.04.2014, available on record wherein the petitioner (defendant No.7) is shown as expired on 12.11.2001.
4. After hearing arguments of the learned counsel for the parties, the learned trial Court
dismissed the application of the petitioner (defendant No.7) on 07.09.2018. Being aggrieved from the order, the petitioner (defendant No.7) filed Civil Revision Petition under section 115, C.P.C. against the order dated 07.09.2018, passed by learned Senior Civil Judge, Zhob, which too was dismissed vide order dated 12.11.2018, passed by learned District Judge, Zhob. Hence this petition.
5. We have heard the argu ments of learned counsel for the parties and gone through the
available record. In order to decide the question as to whether the petitioner, should be allowed to be examined on commission, as claimed by her, it is necessary to see the relevant provisions of the Code of Civil Procedure, hereinafter referred to as 'the Code'. Section 132
(1) and Order XXVI, Rule 1 of the Code. Section 132 (1) being relevant is reproduced below: -
"Section 132. Exemption of certain women from personal appearance. ---(1) Women
who according to the customs and manners of the country, ought not to be compelled to appear in public shall be exempted from personal appearance in Court".
6. Section 132 of the Code provides that the women who according to the custom and
manners of the c ountry ought not to be compelled to appear in public shall be exempt from
personal appearance in the Court. Order V, Rule 3, C.P.C. can also be pressed in aid of the claim for non -appearance in the Court, on the ground of being Pardah Nashin lady. Order
XXVI, Rule 1, C.P.C. read with these provisions of law, namely, Section 132 and Order V,
Rule 3, C.P.C. may provide the scope for examining a 'Pardah Nashin' lady on commission.
But at the same time it has to be borne in mind that the status and claim of bei ng a 'Pardah
Nashin' lady by itself is a question of fact which has to be determined on the basis of necessary evidence and the material produced on record.
7. The concept of being and claiming the privilege of a 'Pardah Nashin' lady has an old
history and long standing practice which of course has its inception in the local custom, laws
or values including the religious dimensions. At the same time it is a hard fact and bare reality that the advent of time, advancement of social, cultural and economic life especially
with the increasing and advancing educational culture, the faith, the thinking, disposition and the psychology of even the customary people and customary families (even the tribes) has undergone a substantial and radical change. Those ladies who could never imagine of free and higher education at times happen to be the leading figures of social and political activity. The social as well as the legal concept of 'Pardah Nashin' has essentially undergone a proportionate progressive change. The soci ety was undergoing the process of constant
changes and transformations of the customs and manners regulating it. Many a rules in the past were in disuse now. Illiteracy of women -folk was fast vanishing today. General rule
observed today was to impart them modern education for equipping them to successfully
shoulder the responsibilities in future. Women were holding high positions in different
departments and occupations. Examples could be multiplied by reference to various fields.
8. In the case in hand, the petitioner (defendant No.7) in the suit filed by the respondent
No.7 (plaintiff) before the Court of learned Civil Judge, Zhob has given special power of attorney to one Muhammad Khan who is appearing on behalf of the petitioner before the learned Senior Civil Judge, Zhob, and filed written statement as well as also filed the instant
constitution petition. The special power of attorney was written by the Petition Writer and was then attested by Notary Public, prima facie leads to the conclusion that these measures
were accomplished in the District Courts or at some area other than the residence of the petitioner. There is no evidence which could show that the power of attorney was also exhibited and attested at the residence of petitioner and all this negate the version of petitioner as stated to be a 'Pardah Nashin' lady for not appear before the Court. It is worthwhile to mention here that the petitioner stated in her statement that "she got married with one Muhammad Yousuf Bhatti on 09.08.1988 according to injunction of Islam". It presumed that she got married at that time she was 19/20 years old and now the age of the petitioner is to be 50/51 years.
9. The next relevant provision of the Code is Rule Order XXVI, Which is to the
following effect: -
"Any C ourt may in any suit issue a commission for the examination in interrogatories
or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code from attending the Court or who is from sickness or infirmity una ble to attend it".
10. The grounds upon which a commission can be issued are specified in Rule 1, with
which we are concerned here, and also in Rules 4 and 5 of Order XXVI. One of such grounds mentioned in the Rule 1 is when the Court can issue a commission for the examination of any
person and that is when he, or she, as the case may be is exempted under this Code from
attending the Court.
11. The issue of a commission is a matter of judicial discretion of the Court, depending
on the facts of each case. A commission, ordinarily should be issued for the examination of a 'Pardah Nashin' lady, unless her application for commission is not based on mala fide, or would amount to an abuse of the process of the Court, or it may result in manifest injustice to any party, or for other valid reasons, which the Court may take into consideration in deciding whether the application on the facts of that particular case, should be allowed or refused.
12. In the case in hand the question for determination in this petition is , whether she can
be allowed to be examined by issuing commission. The other question raised by the respondent (plaintiff) is that the petitioner (Raziz Bibi) shall appear before the trial court in order to nullify her death as death certificate has been i ssued on 07.04.2014 by the Chief
Officer Municipal Committee Zhob verifying the death of Razia Bibi as widow of late Muhammad Yousuf. The respondent (plaintiff) claimed in her suit that she is the sole daughter of late Muhammad Yousuf Bhatti. The respondent No.7 (plaintiff) initially submitted an application for issuance of succession certificate before the District Judge, Zhob, for the purpose drawing monthly pension of her late father (Muhammad Yousuf Bhatti) which was transferred to the Court of learned Senior Civil Judge, Zhob. During
proceedings Muhammad Younus Bhatti submitted an application under Order I, Rule 10, C.P.C. for impleading him as a respondent and later on the learned trial Court arrayed him as a respondent. Meanwhile, during the trial, the application was returned to the plaintiff for want of jurisdiction. Subsequently the plaintiff (respondent No.7) filed an application for appointment of a Guardian of the minor namely Muqadas Yousuf (plaintiff) before the Court
of Qazi, Zhob, and the sam e was returned to the plaintiff for want of jurisdiction and the
plaintiff was directed to approach the competent Court of law and later on the plaintiff filed a suit for declaration and permanent injunction with the prayer that she may be declared as a daughter of Muhammad Yousuf Bhatti. The petitioner filed written statement and denied the
claim of plaintiff (respondent No.7) on the ground that she is not daughter of Muhammad Yousuf Bhatti and further took the plea that she is alive and sworn on affidavit and that
present plaintiff Miss. Muqadas (plaintiff/respondent No.7) is not her daughter nor any issue was born during the subsistence of her marriage with deceased Muhammad Yousuf. On the other hand, the plaintiff (respondent No.7) claimed that the petit ioner has been expired
according to death certificate No.025 issued by the Municipal Committee Zhob on 07.04.2014.
13. Factually the issues between the parties are that the plaintiff (respondent No.7)
claimed herself as a daughter of late Muhammad Yousuf Bhatti and further claimed that the petitioner (defendant No.7) has been died. On the other hand, the petitioner (defendant No.7) claimed that the respondent No.7 (plaintiff) is not daughter of Muhammad Yousuf Bhatti and further claimed that she (petitioner) was wife of late Muhammad Yousuf Bhatti.
14. It is an admitted fact of the case that the late Muhammad Yousuf Bhatti was the
government servant and the plaintiff claimed his pension and inheritance property.
15. In view of the above, this is a ca se of extraordinarily situation. Now it is an
established law that section 75 as well as order XXVI do not allow delegation of powers by
the Court to the Local Commissioner to decide material issues where the matter should be decided by direct evidence. The power to record such evidence could not be delegated to the Local Commissioner. In the above circumstances, appearance of the petitioner before the
learned trial court would be appropriate to resolve the question that whether the petitioner
(defendant No .7) was wife of late Muhammad Yousuf Bhatti and whether she is alive.
In view of what has been stated above, the findings of the trial and revisional Courts
are neither perverse nor suffer from any illegality or material irregularity. The petition is
therefore dismissed with no order as to costs.
ZC/90/BAL Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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