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Kedarnath Shersinghdas and anr. Vs. Nomanbhai Koorban HooseIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Reported inAIR1931Bom175
AppellantKedarnath Shersinghdas and anr.
RespondentNomanbhai Koorban HooseIn and ors.
Excerpt:
.....the lord chancellor observed that if the court was satisfied that the attendance in court of the party, who is arrested and claims exemption, was bona fide, some latitude should be allowed in a case where that party was not resident in the city in which his case was heard. if the court is so satisfied, such a party would be privileged from arrest. ): it is the well established rule of english law that a witness or a party to a civil suit, whoso attendance is required on a trial before a judicial tribunal, is protected from arrest on civil process during the time reasonably occupied in going to, attending at, and returning from the place of trial. secondly, that the court or tribunal which he attends has jurisdiction in the matter pending before it, or the party believes in good faith..........place to attend a court before which his matter is pending, i see no reason why an equally reason party returning to the outside place whence he came. 3. in the case of appasamy pattar v. p.e. govindan nambiar (2) the defendant was summoned by the plaintiff and examined by him as a witness on his behalf. a decree was passed in favor of the plaintiff and on the plaintiff's application the defendant was immediately arrested. it was held that he was exempt from arrest, because he was entitled to a reasonable time to return to his home. the statement however of law has been laid down in these words (p. 145 of 4 m.h.c.):it is the well established rule of english law that a witness or a party to a civil suit, whoso attendance is required on a trial before a judicial tribunal, is protected.....
Judgment:

Wadia, J.

1. These two matters which have come up before me in chambers for the purpose of determining whether the respondent in each case can claim exemption from arrest Under Section 135, Civil P.C., in execution of an award filed in this Court in each of the two matters respectively. Both the matters were ordered by no to be heard together on counsel's chamber day, as there was a common question of law in either of them and counsel wished to argue it before me. (After setting out the facts in the two cases, his Lordship proceeded.) Section 135, Civil P.C., provides inter alia that when a matter is pending before a competent Court or tribunal, a party to that matter is exempt from arrest while going to or attending the tribunal for the purpose of such matter and while returning from such Court or tribunal. The principle on which that provision is based has been stated to be that freedom from fear of arrest encourages willing attendance on the part of the party in Court where his matter is pending, and thereby tends to the advancement of justice. It has also been held that the rule confers no personal privilege, for the privilege is not given by law for the personal benefit of the party claiming exemption, but is solely given in the interests and for the better administration of justice. It was however argued on behalf of the petitioners, that if a party comes from up country to Bombay for the purpose of the matter which is pending before a competent Court and puts up at a temporary place of residence in Bombay, he is only privileged from arrest during the time he goes to Court from that temporary place of residence, attends and returns from the Court to the same place. In my opinion the provision laid down in Section 135 is much wider, or rather has a wider application then what is sought to be1 made out by the learned Counsel for the petitioners. The word 'while' implies that there is a period of time occupied in going to, attending and returning from the tribunal, which period, of course, must be variable according to each case. The section however does not particularize any place from which a party goes to the tribunal, or to which he returns.

2. In the case of Persse v. Persse [1886] 5 H.L.C. 671 the Lord Chancellor observed that if the Court was satisfied that the attendance in Court of the party, who is arrested and claims exemption, was bona fide, some latitude should be allowed in a case where that party was not resident in the city in which his case was heard. If the Court is so satisfied, such a party would be privileged from arrest. In that case the appellant had come from Ireland to London for the purpose of his appeal against a decree of the Lord Chancellor of Ireland. He came to London in the month of January, though the hearing of the appeal was not expected till the month of March, and was, as a matter of fact, adjourned and notified for 22nd May. He was staying in London in his chambers on 9th May when he was arrested on a writ of attachment issued for non payment of costs pursuant to an order of the Court. The Lord Chancellor held that if the party had been arrested in the month of January or February, he could not have claimed the exemption, because that would not be considered a reasonable time to go to the tribunal in London, when the hearing in the' first place was notified for the month of March. If therefore some latitude, which I think must be reasonable, is shown to a party coining from an outside place to attend a Court before which his matter is pending, I see no reason why an equally reason party returning to the outside place whence he came.

3. In the case of Appasamy Pattar v. P.E. Govindan Nambiar (2) the defendant was summoned by the plaintiff and examined by him as a witness on his behalf. A decree was passed in favor of the plaintiff and on the plaintiff's application the defendant was immediately arrested. It was held that he was exempt from arrest, because he was entitled to a reasonable time to return to his home. The statement however of law has been laid down in these words (p. 145 of 4 M.H.C.):

It is the well established rule of English law that a witness or a party to a civil suit, whoso attendance is required on a trial before a judicial tribunal, is protected from arrest on civil process during the time reasonably occupied in going to, attending at, and returning from the place of trial.

4. In the case of In re Siva Bux Savuntharam [1881] 4 Mad. 317 the plaintiff, who was a resident of Patna, and who had instituted a suit in the High Court of Madras, left Patna on hearing from his solicitors, and arrived in Madras on 24th October. The suit came on for hearing on 27th October and adjourned to a very late date in the month of December. Ho was arrested in Madras in execution of a decree against him on 10th November. Kernan, J., held that ho was exempt from arrest. This case was however commented upon and not followed in the case of Ardeshirji Framji v. Kalyan Das (4). In that case an ex parte decree was passed in Benares against two defendants who were residents of Bombay. They went to Benares to have the decree set aside, and put up at a dak bungalow. On the day on which their application was heard, they attended Court; but their application was dismissed, and they returned to the dak bungalow, whence they proceeded to the railway station; and, when arrested, were actually seated in their compartment in a train at a standstill on the platform. On evidence it was found out that they had on their person tickets for Allahabad. The appeal Court held that being on their way to a place which is not their home, they cannot be said to have been

returning from a tribunal within the moaning of Section 135.

5. It was stated by counsel appearing for the arrested persons that they were proceeding to Bombay via Allahabad' for the sake of convenience.' No mention is made of that statement in the judgment, nor does it appear from the record of the case that it was in evidence. As I read the judgment of the appeal Court, if appears to me that the defendants would have been exempt from arrest, if they had proceeded straight to Bombay without deviation from the direct route from Benares to Bombay. The appeal Court discussed the case of In re Siva Bux Savuntharam [1881] 4 Mad. 317, mentioned above, and were of opinion that in that case the plaintiff could not be said to have been going to, attending or returning from any tribunal at the time of his arrest. On 27th October he knew that his case was adjourned to a very late day in December, and yet he tarried in Madras till he was arrested. Under the circumstances the appeal Court held, and in my opinion rightly hold, that it was too great an extension of the scope of the privilege given by Section 135.

6. There are two or three other cases to which I wish to refer in passing. There is a case, In the matter of Soorendro Nath Roy Chowdhry [1880] 5 Cal. 106, where this privilege was extended to a defendant in a summary suit,, who had not even obtained leave to defend at the time when he was arrested. In the case of Childerston v. Barrett [1809] 11 East 439 the plaintiff in a suit attended from day to day in expectation of his case reaching. He was waiting in an adjoining coffee house on the day before the date of the trial when he was arrested, and it was yet held that he was privileged from arrest. Reliance, was placed by counsel for the petitioners on the case of Wooma Churn Dhole v. Teli [1875] 14 B L.R. 13. In that case a person summoned as a witness reached Calcutta before the case came on for hearing, and was arrested in execution of a decree, whilst returning by a roundat out way to his temporary place of residence in order to pick up his daughter. It was held that he had gone unnecessarily to the Court to find out about the case in which he was to give evidence when he knew that the case would not be called on that day. In that case the witness did not bona fide believe that his attendance was required in Court for giving evidence in the ease in which ha was subpoenaed, and it was held that he was not exempt from arrest. This case has been commented upon by Wilson, J., in the case of In the matter of Surendro Nath Roy [1880] 5 Cal. 106, mentioned above, at p. 109, whore ho says that, the ground of decision was that though the witness had come to Court, he had not come actually to Court as a witness for the case, but for a different purpose of his own.

7. Each case must necessarily be decided on its own facts and circumstances, but there are certain principles which can be deduced from the cases which I have discussed above. In order to obtain exemption Under Section 135, Civil P.C., the party must first satisfy the Court, ordinarily by statements made on affidavit, that his attendance in the Court or tribunal is bona fide in relation to the matter pending before that Court or tribunal; secondly, that the Court or tribunal which he attends has jurisdiction in the matter pending before it, or the party believes in good faith that it has such jurisdiction; and thirdly, that he should be exempt from arrest during such period as is reasonably required in going to the tribunal from his ordinary place of residences, in attending that tribunal, and in returning from it to the ordinary place of residence whence he came. Such place of residence may be within the jurisdiction of the Court before which the matter is pending, or outside the jurisdiction. What period is reasonable is a question of fact to be determine by the Court in each case, and no hard and fast rule can be laid down as to the extent or duration of the privilege. Further, the exemption is forfeited if in going to or in returning from the Court, there is an unnecessary or excessive deviation sufficient in the opinion of the Court to forfeit the privilege. No party or witness can claim to return to his ordinary place of residence by any route he likes: see Emperor v. Bihar Singh A.I.R. 1924 All. 676.

8. Applying these principles to the facts in the two matters before me, I am of opinion that the respondent who came from Khamgaon in the first matter, and the respondent who came from Barwaha in the second matter, had come to Bombay bona fide, in the first casa for the purpose of defending a suit filed against him in the Small Cause Court of Bombay and in the second case for the purpose of prosecuting his own case as a plaintiff in this Court. It makes no difference, in my opinion, that in the one case he had to come compulsorily as a defendant and that in the other case he came voluntarily as a plaintiff for his own case. Whether he came as defendant or as a plaintiff, the Court has got to consider whether his appearance was bona fide for the purpose for which he actually came. I am satisfied on the affidavits that have been placed before me that in either case the respondent is entitled to the privilege Under Section 135, Civil P.C., and I therefore hold that they are exempt from arrest. I direct that in either case the warrant of arrest must be discharged with costs, including costs reserved if any Counsel certified in the first matter.


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