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Report No. 27

Order XVI, rule 12

1. Order XVI, rule 12 empowers the court to impose a fine upon a witness who has disobeyed a summons for attendance in court. The wording used is, "The Court may, where such person does not appear, etc." Now, the question has arisen whether, before the power under this rule can be exercised, it is essential that the Court should have issued a proclamation under Order XVI, rule 10 (2) or a warrant under Order XVI, rule 10(3) or an order of attachment of property under Order XVI, rule 10(3), latter half. Conflicting opinions have been expressed on this point, as follows:-

(i) One view is that, the fines under rule 12 cannot be imposed unless the property of the witness has been attached1-2. According to this view, rules 11 and 12 have to be read together, and rule 12 deals with the alternative situation to that dealt with in rule 11. Since rule 11 applies only where there is an attachment, rule 12 will also apply only where there is attachment. A contrary view has, however, been expressed in an observation of the Lahore High Court3.

(ii) Another view is, that no fine can be imposed unless and until there has been a proclamation which has been disobeyed4. According to this view the words "such person" in rule 12 refer to that person who is described during the whole of rules 10 and 11. If a proclamation is issued and the witness fails to obey it and fails to show that he did not receive notice, the fine may be imposed. This view seems to assume that the words "does not appear, or appears but fails, etc.", in rule 12 refer to appearance on the date mentioned in the proclamation.

(iii) According to the third view5, either a proclamation under sub-rule (2) of rule 10 or a warrant or an attachment of property under sub-rule (3) of rule 10 should have been ordered before the fine can be imposed under rule 10. According to this view, the words "such person" in rule 12 refer to sub-rules (2) and (3) of rule 10.

(iv) Another view is, that neither attachment nor proclamation mentioned in rule 10(2) or (3) is necessary, and that the words "such person" in rule 12 refer to the person mentioned in rule 10(1), who has been referred to in all the subsequent provisions as "such person"6-7.

2. On the language of the existing rule, there is much to be said for each of these views. But there is no reason why a provision in the amplest terms should not be made so as to apply rule 12 in all cases where the witness fails to comply with a summons. It may be noted, that the object of the various processes in rules 10, 11 and 12 is to compel the attendance of the witness. (See section 32 opening lines.) The basis of the jurisdiction is the disobedience to the summons by the witness. The word "may" in sub-rules (2) and (3) of rule 10 shows that the issue of a proclamation, etc., is discretionary.

3. It is, therefore, considered desirable to make the position clear. At the same time, it is proposed that wherenone of the three processes has been issued, notice to show cause should be given to the person concerned, before a fine can be imposed.

1. Sib Kumari v. Secretary of State, AIR 1920 CaI 46.

2. Ashutosh v. Secretary of State, AIR 1920 Cal 655(1).

3. Banwari Lal v. Emp., AIR 1928 Lah 979 (980), right-hand (Shadi Lal C.J.).

4. Amir Chand v. Jowahar Singh, AIR 1928 Lah 4731 (Harrison J.).

5. Hirdey Narain v. Emp., AIR 1949 All 850.

6. Narasayya (in re:), ILR 48 Mad 941: AIR 1925 Mad 147 (DB).

7. Ramdeo Prasad v. State, AIR 1951 All 415 (DB).

Order XVI, rule 16

Under the Punjab Amendment, where a presiding officer is absent, the next date of hearing can be intimated by another Judge or by a court-official nominated for the purpose. The previous Punjab view was, that if the Judge is absent, the Reader cannot fix the date1-2-3. (Where the Judge has authorised the Reader under the Local Civil Courts Act, it can be done, according to the Madras High Court.)4

It is considered unnecessary to adopt the Punjab Amendment, the matter being one of minute detail.

1. See Hukam Chand v. Mani Shibrat Das, AIR 1934 Lah 984 (Hilton J.).

2. See also Gulam Haidar v. Diwan labal Nath, AIR 1936 Lah 1000.

3. See also Lalla Prasad v. Nand, ILR 22 All 56 (FB).

4. See S.M. Raja Goundar v. Sabapathi, AIR 1952 Mad 798.

Order XVI, rule 21

1. Order XVI, rule 21 provides that where any party to a suit is required to give evidence or to produce a document, the provisions as to witnesses shall apply to him so far as they are applicable. The first point that has arisen under this rule is as to the malpractice of one party calling the other party as a witness. This practice has been condemned more than once by the Privy Council1-2. Notwithstanding such condemnation, the practice appears to persist3.

2. Another point is that this rule applies only where a party is summoned at the instance of the other party4 to give evidence, etc.

3. The third point is the question of expenses incurred by a party who appears as his own witness. Several High Courts5 have inserted a provision to the effect, that when a party to the suit gives evidence (on his own behalf), the court may in its discretion permit him to include in the costs of the suit a sum of money equal to the amount payable for travelling and other expenses to other witnesses of similar standing. Without such a provision, the rule does not seem to permit the award of travelling expenses incurred by a party giving evidence on his own behalf6.

4. All these points have been considered, but it is felt that an express provision thereon is not necessary.

(So far as the question of costs of party is concerned, there is an elaborate discussion in the Report of the Civil Justice Committee)7.

1. Lal Kunwar v. Chiranjit, ILR 32 All 104 (PC).

2. Kishori Lal v. Chimmi Lal, ILR 31 All 116 (122) (PC).

3. See Pir Gouda v. Vishwanath, AIR 1956 Born 251 (Gajendragadkar J.).

4. Kanniah Chetty and Co. v. Subba Rao, AIR 1935 Mad 244 (Beasley C.J.).

5. See Calcutta, Madras and Kerala Amendments to Order 16, rule 21.

6. Kanniah Chetty and Co. v. Subba Rao, AIR 1935 Mad 244.

7. Report of the Civil Justice Committee (1924-25), paras. 518-519, Chapter 44, para. 1, middle, and subsequent paragraphs.

Code of Civil Procedure, 1908 Back

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