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Report No. 27

Order XVI, rule 1 and credibility

A recommendation has been made in the Fourteenth Report1 to the effect that the credibility of a witness should not be attacked on the ground that he has not been summoned through the court. It is felt that it is unnecessary to insert such a provision. A rule as to the value of evidence need not be inserted in the Civil Procedure Code.

1. 14th Report, Vol. I.

Order XVI, rule 1A

Since the provision regarding list of witnesses has been transferred1, consequential changes are proposed in this rule.

1. See Order 16, rule I (proposed).

Order XVI, rule 2

Where a summons is served by a party, the expenses of the witness should be paid to the witness by the party or his agent, and need not be deposited in the court. The change proposed is intended to make that clear. Cf. the Calcutta Amendment to Order XVI, rules 2 and 8 and the Madras Amendment, Order XVI, rule 2(4).

Order XVI, rule 7A (New)

This rule is new, and has been inserted to facilitate the service of summons by a party. It carries out the recommendation made on the subject in the Fourteenth Report1, to the effect, that the Calcutta Amendment (under which parties are in the first instance responsible for bringing witnesses) may be adopted subject to the safeguard that the impartiality of a witness so brought should not be suspected. Except in one respect, the proposed rule follows the provisions of Order XVI, rule 7A, inserted by the Calcutta Amendment. One important departure from the Calcutta Amendment may, however, be noted. Under the Calcutta Amendment, under rule 7A(1), the court "shall make over" the summons to the party applying therefor, except where it appears to the court that the summons should be served by the court. Under the Bombay and Gujarat Amendments, Order XVI, rule IB, the court may, on the application of any party, permit the service of summons by that party. The discretion of the court has been put more clearly in the Bombay Amendment, which has been followed in the draft rule on this point. See also the amendments made to Order XVI, rule 8 by the High Courts of Allahabad, Andhra Pradesh, Kerala, Orissa, Madras, Patna and Rajasthan.

1. 14th Report, Vol. I.

Order XVI, rule 8

This is consequential, and is intended to exclude a summons handed over to parties for service1, from the operation of the rule. Compare Order XVI, rule 8(1), as amended by the Calcutta High Court.

1. See Order 16, rule 7A proposed.

Order XVI, rule 10

1. Where a summons is served by a party1 the person effecting service should, it is felt, always be examined by the court under Order XVI, rule 10. That has been provided for in the proposed amendment.

2. It is considered, that ordinarily process fee should not be charged for the issue of a proclamation, warrant or attachment under rule 10. These processes are necessitated by reason of the disobedience of a witness to a lawful order of the court, and should be issued without charging fees.

Necessary change has been proposed.

1. See Order 16, rule 7A (proposed).

Code of Civil Procedure, 1908 Back

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