- (1.) This revisional application is directed against Order No.231 dated 21st April, 2015, passed by the learned 4th Judge, City Civil Court at Calcutta in Title Suit No.2437 of 1996. The defendant nos.1(a) and 1(c) are the petitioners before this Court. The original petitioner no.1 being dead, Smt. Pushpa Devi Bangur and Smt. Rakhee Rajgharia have been substituted in place of original petitioner no.1, Gopal Das Bangur (since deceased). The substituted petitioner no.1(a), Smt. Pushpa Devi Bangur, is the widow of Gopal Das Bangur and Smt. Rakhee Rajgharia is the daughter of late Gopal Das Bangur. Petitioner no.2 is the son of the deceased Gopal Das Bangur, and is already on record. The opposite party no.1 filed a suit being Title Suit No.2437 of 1996 in the City Civil Court at Calcutta for ejectment of the original defendant, Purushottam Das Bangur from the suit property. Plaintiff in the suit examined as many as five witnesses and the evidence on behalf of the plaintiff was concluded on 6th August, 2010. Prior to commencement of evidence of the defendants, original defendant died on 3rd December, 2010. The learned Court below fixed 17th December, 2012 for adducing evidence on behalf of the petitioners. On 17th December, 2012 affidavit of evidence of DW 1 Sri Hemant Bangur was filed and further examination-in-chief of DW 1 commenced for exhibiting the documents. On 16th September, 2013 oral evidence of DW 1 was completed and thereafter, oral evidence of DW 2 (Sri Abhay Gandhi) commenced on 30th September, 2013 and the same was concluded on 28th November, 2013. Thereafter, oral evidence of DW 3 (Sri Jugal Kishore Kankani) commenced and was completed on 20th February, 2014. Oral evidence of DW 4 (Sri Srikant Bangur) commenced from 13th March, 2014 and such evidence was concluded on 24th July, 2014.
(2.) Learned Court below fixed 12th August, 2014 for examination of DW 5. A case has been made out by the petitioner that by reason of certain disputes between two families, i.e., family of Sri L.N. Bangur and the family of the petitioners, the said Sri L.N. Bangur, in breach of the family arrangement, filed the present suit for eviction of the original defendant Purushottam Das Bangur, who was the natural father of Sri L.N. Bangur from the suit property. It has been stated that the plaintiff was a family concern of the joint Bangur family. In pursuance of a family settlement made in the Bangur family, the plaintiff-company was allotted to Sri L.N. Bangur, the natural son of the original defendant Purushottam Das Bangur (since deceased). It is stated by the petitioners that for the purpose of proving the family settlement and/or family arrangement, it is absolutely necessary for the family members of Bangur family to give evidence in the suit. The senior-most family member, Sri Gopal Das Bangur (since deceased), who was suffering at the relevant time from various ailments, was not in a position to give evidence in the suit. In that view of the matter, his son, Sri Hemant Bangur, the petitioner no.2, gave oral evidence at the first instance. Another member of Bangur family, Sri Srikant Bangur also gave oral evidence. According to the defendants/petitioners, it became absolutely necessary for Smt. Pushpa Devi Bangur, substituted as petitioner no.1(a) to this revisional application being the widow of Sri Gopal Das Bangur (since deceased) and the mother of the said Sri Hemant Bangur, to give oral evidence in the suit to prove the family settlement and the family arrangement made in the Bangur family .
(3.) It has been stated that DW 5, Smt. Pushpa Devi Bangur, is the daughter-in-law of Bangur family and that the said old Hindu family is a very conservative and orthodox one. According to the petitioner, DW 5, Smt. Pushpa Devi Bangur, was married to Sri Gopal Das Bangur in the year 1966 when female members of Bangur family used to maintain 'pardah' system and, as a result whereof, DW 5, Smt. Pushpa Devi Bangur, had to maintain 'pardah' and never appeared in public. However, with the passage of time, the said 'pardah' system in Bangur family got gradually relaxed but no female member of the Bangur family has, however, come to any Court for giving oral evidence. Having regard to such constraints to appear in public for the purpose of giving evidence in open Court, the defendants/petitioners filed an application for examination of DW 5 on commission. The said defendants/petitioners also filed an affidavit of evidence of DW 5, Smt. Pushpa Devi Bangur on 9th September, 2014. The application for examination of DW 5 on commission has been made under the provisions of Order XXVI Rule 1 of the Code of Civil Procedure and has been annexed to the revisional application marked Annexure B. From the said application it appears that prayer has been made for examination of DW 5 on commission. It was contended that Smt. Pushpa Devi Bangur, DW 5, was willing to give oral evidence being the wife of the original defendant who was suffering from various ailments and was not in a position to give evidence in the suit. It was contended that oral evidence of DW 5, Smt. Pushpa Devi Bangur, is absolutely necessary for proving the Defence case. In support of the prayer for issuing commission for the examination of DW 5, it has been further contended that female members of Bangur family do not appear in public due to prevailing 'pardah' system, although, with the passage of time such 'pardah' system got diluted but no female member of the family ever came out for giving evidence in Court. Therefore, it was contended that Smt. Pushpa Devi Bangur, being a female member of the orthodox and conservative Hindu Bangur family, ought not to be compelled to appear before the Court in person for giving oral evidence and in the interest of justice, learned Court should exempt personal appearance of DW 5 and instead direct DW 5 be examined on commission for recording her oral evidence. An affidavit-in-opposition was filed before the learned Court below on behalf of the plaintiff to the defendants' application under Order XXVI Rule 1 read with Section 151 of the Code of Civil Procedure. In the said affidavit, it has been contended by the plaintiff that Bangur family does not maintain 'pardah' system and it is also not correct to say that no female members of Bangur family appear in public. It has been contended that no case has been made out by the defendant that Smt. Pushpa Devi Bangur maintains 'pardah' system for which she cannot appear in Court. The plaintiff contended that it was voluntary decision of Smt. Pushpa Devi Bangur to give evidence for her own interest and she should come to Court to give evidence. It has been added that demeanour of the witness is a very important factor. In order to contradict the plea taken by the defendants that Smt. Pushpa Devi Bangur is a 'pardahnashin' lady, the plaintiff annexed certain documents to his affidavit-in-opposition. He has relied on a report on corporate governance to show that Smt. P.D. Bangur (Pushpa Devi Bangur) attended last Annual General Meeting of the company where she is a Non-Executive Director and she had attended two such Annual General Meeting.;