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B. Hirdey NaraIn Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1929All850
AppellantB. Hirdey Narain
RespondentEmperor
Cases ReferredHosan Ali Bepari v. Emperor
Excerpt:
.....the document in compliance with the summons or has intentionally avoided service, the court may issue a proclamation requiring him to attend to give evidence, or to produce the document and by clause (3) of that rule the court is further empowered: secretary of state (1) a learned judge of the calcutta high court held that the court can only proceed under rule 12 where there has been previous order of attachment of property under rule 10, and repelled the contention that rule 12 must be read immediately after clause 1, rule 10, that is, that a court has jurisdiction under rule 12 to impose a fine on a witness who has failed to obey the summons issued by the court though the court has not passed an order of attachment. 624. on the other hand two learned judges of the madras high court..........under c1s. 2 and 3, rule 10. the learned judges were of opinion that:to say that a judge cannot fine a witness 'for disobedience of summons unless the preliminaries are first gone through of attaching his property or issuing a proclamation against him is to put an unnecessary limitation on the powers of court to deal with the refractory witnesses.14. there is no decision of this court to guide us in the present matter but, on an examination of the provisions of sections 30 and 32 and of order 16, rules 10 and 12 we are, with all respect, unable to agree either with the decisions of the calcutta high court or with the decision of the madras high court.15. in our judgment the court can only proceed under rule 12 when the provisions of clause 2 or clause 3, rule 10, have been complied.....
Judgment:

1. This application in revision is directed against an appellate order of the District Judge of Pilibhit, affirming an order of the learned Munsif of Pilibhit by which that officer imposed a fine of Rs. 50 on the applicant under Section 32, Civil P.C.

2. The applicant was summoned as a witness in a civil suit by the plaintiff of that suit. The summons was duly served on him and he was required to attend the Court on 19th May 1927, but he failed to appear on that date. The plaintiff filed an application that, before the evidence is recorded, arguments be heard on a question of law that called for determination in the case. This application was granted and the Court decided the case on a preliminary point and no evidence was recorded.

3. The learned Munsif called on the applicant to show cause why he should not be fined under Section 32, Civil P.C. The applicant filed a written statement embodying the reason for his failure to attend the Court on 19th May 1927, and prayed that he be excused for having disobeyed the summons. The learned Munsif, however, was disposed to take a serious view of the matter because the applicant:

is a lawyer and is expected to care for law more than an ordinary man

and passed the order referred to above.

4. The applicant filed an appeal in the Court of the District Judge. In appeal before him it was argued that there was sufficient cause for the applicant's failure to appear in Court in obedience to the summons and that in any case, without a previous order of attachment under Order 16, Rule 10, the learned Munsif had no jurisdiction to impose fine on the petitioner. The learned Judge came to the conclusion that no sufficient cause had been made out by the petitioner for his failure to attend the Court on 19th May 1927. This finding of the learned Judge is a finding on a question of fact and cannot be, and has not been assailed, before us.

5. In support of the argument that the learned Munsif had no jurisdiction to pass the order, reliance was placed on behalf of the applicant on two cases decided by the Calcutta High Court via.: Ram Gopal v. Secy, of State [1918] 31 C.L.J. 363 and Ashutosh Mullick v. Secy. of State [1918] 57 I.C. 302. Both are single Judge decisions and in those cases it was held that no order can be passed under Rule 12, Order 16, unless there has been a previous order of attachment under Rule 10, Order 16. The learned Judge after noticing the fact that 'no distinction can be founded upon the fact' that the order was passed by the Munsif under Section 32 and not under Order 16, Rule 12 of the Code, proceeded to examine the provisions of Order 16, Rules 10 and 12, and came to the conclusion that a Court has jurisdiction to pass an order imposing a fine under Section 32 and Order 16, Rule 12 of the Code, even though there has been no previous order for attachment. He gave the following two reasons for not following the decisions of the Calcutta High Court. In the first place he pointed out that as attachment under Order 1. (3), Rule 10 is to be an attachment of property of the witness:

to such an amount, not exceeding the amount of the costs of attachment and of any fine which may be imposed under Rule 12,

it follows that

imposition of fine under Rule 12 takes place before the order of attachment under Rule 12.

6. The second reason assigned by him was that the wording of Rule 12 by which the Court:

is authorized to order the property of the witness to be attached and sold, or, if it has already been attached under Rule 10 then to be sold,

confirms the view that the fine may be imposed even in cases where there has been no attachment.

7. This application was put up for hearing before a learned Judge of this Court and his attention was drawn to the case of Peta Nagayya, In re. : AIR1925Mad1247 , in which it has been held that neither the issue of a proclamation, nor an order for attachment of property under Rule 10, Order 16, Civil P.C., is a condition precedent to the imposition of a fine under Rule 12 and he, in view of the conflict between the decisions of the Calcutta and the Madras High Courts, has referred this case to a Bench of two Judges.

8. The learned Counsel for the applicant has, on the authority of the Calcutta decisions, argued that the order of the learned Munsif was without jurisdiction and, the learned Government Advocate has supported the order on the grounds assigned by the learned District Judge.

9. After giving the matter our best consideration, we have come to the conclusion that the argument of the learned Counsel for the applicant is well founded and ought to prevail.

10. The Code of Civil Procedure consists of that which is termed the 'body of the Code' and of the rules. The body of the Code is fundamental and creates jurisdiction, while the rules lay down the mode in which that jurisdiction is to be exercised. The body of the Code has to be read in conjunction with the particular provisions of the rules. The provisions relevant to the matter before us are to be found in Sections 30 and 32, in the body of the Code and in Rules 10, 11 and 12 of Order 16. Section 30 gives jurisdiction to the Court to issue summonses to persons whose attendance is required either to give evidence, or to produce documents etc., and Section 32 vests the Court with jurisdiction to issue a warrant for the arrest of the witness, or to attach and sell his property, or to impose a fine upon him, or to order him to furnish security for his appearance. The mode in which the jurisdiction so vested in Court is to be exercised is indicated by Order 16. It follows therefore, that the jurisdiction to impose fine can only be exercised in the manner laid down by Order 16.

11. We, therefore, proceed to examine the provisions of the relevant rules of that order. The procedure to be followed by a Court, where a witness fails to comply with a summons, is provided for by Rule 10 and it is laid down by Sub-clause (2) of that rule that when the Court is satisfied that the evidence of the witness or the production of the document that he has been called upon to produce is material, and that the witness has, without lawful excuse, failed to appear or to produce the document in compliance with the summons or has intentionally avoided service, the Court may issue a proclamation requiring him to attend to give evidence, or to produce the document and by Clause (3) of that rule the Court is further empowered:

in lien of or at the time of issuing such proclamation or at any time afterwards

to issue a warrant for the arrest of the witness and

make an order for the attachment of his property to such an amount as ha thinks fit, not exceeding the amount of the costs of attachment and of any fine which may be imposed under Rule 12.

12. Rule 11 has reference only to those cases in which an order of attachment has been passed. Then comes Rule 12, which provides that:

the Court may, where such person does not appear, or appears but fails so to satisfy the Court, impose upon him such a fine not exceeding Rs. 500 as it thinks fit, having regard to his condition in life and all the circumstances of the case, and may order his property, or any part thereof, to be attached and sold or, if already attached under R, 10, be sold for the purpose of satisfying all costs of such attachment, together with the amount of the said fine, if any.

13. In the case of Ram Gopal v. Secretary of State (1) a learned Judge of the Calcutta High Court held that the Court can only proceed under Rule 12 where there has been previous order of attachment of property under Rule 10, and repelled the contention that Rule 12 must be read immediately after Clause 1, Rule 10, that is, that a Court has jurisdiction under Rule 12 to impose a fine on a witness who has failed to obey the summons issued by the Court though the Court has not passed an order of attachment. As already stated, to the same effect is the decision of another learned Judge of the same High Court in Hosan Ali Bepari v. Emperor [1918] 24 C.W.N. 624. On the other hand two learned Judges of the Madras High Court in Peta Nagayya, In re : AIR1925Mad1247 , held that a Court has jurisdiction under Rule 12 to impose a fine on a witness simply on the ground of the failure of the witness to obey the summons of the Court, and that it is not at all necessary for the exercise of jurisdiction under that rule to issue a proclamation or to issue a warrant or pass an order for attachment of property under C1s. 2 and 3, Rule 10. The learned Judges were of opinion that:

to say that a Judge cannot fine a witness 'for disobedience of summons unless the preliminaries are first gone through of attaching his property or issuing a proclamation against him is to put an unnecessary limitation on the powers of Court to deal with the refractory witnesses.

14. There is no decision of this Court to guide us in the present matter but, on an examination of the provisions of Sections 30 and 32 and of Order 16, Rules 10 and 12 we are, with all respect, unable to agree either with the decisions of the Calcutta High Court or with the decision of the Madras High Court.

15. In our judgment the Court can only proceed under Rule 12 when the provisions of Clause 2 or Clause 3, Rule 10, have been complied with. In other words fine can be imposed on a witness under Rule 12 only where the Court has already issued a proclamation, calling upon the witness to attend to give evidence or to attend to produce the document, or has issued a warrant of arrest or passed an order for attachment of property. The words ''such a person' in Rule 12 clearly have reference to the person to whom proclamation has been issued under Clause (2), Rule 10, or against whom proceedings have been taken under Clause (3), Rule 10 and who does not appear, or on appearance fails to satisfy the Court that he had lawful excuse for not obeying the summons of the Court. The reasons assigned by the learned Judges of the Madras High Court for holding that the words 'such person' in Rule 12 have reference to a person to whom a summons has been issued and who has failed to attend does not commend itself to us. Rule 12 provides not only with respect to cases where the witness does not appear but also with respect to cases where the witness appears but fails to satisfy the Court that he had lawful excuse for not appearing. To accept the interpretation put by the learned Judges of the Madras High Court would be to totally ignore the following words in Rule 12: 'or appears but fails to satisfy the Court.'

16. The words quoted above cannot have reference to a witness who has failed to attend the Court on the date for which he was summoned to appear, but have application to the case of a person who having failed to obey the summons of the Court appears on a subsequent date to show cause for his failure and, therefore, the words 'such person' in Rule 12 cannot have reference to a person who has not been called upon by a proclamation to attend the Court on a particular date, or against whom proceedings have not been taken under Clause 3, Rule 10

17. We are further of opinion that if a proclamation has been issued under Clause 2 the passing of an order for attachment, or the issue of a warrant under Clause 3, Rule 10, is not essential to vest the Court with jurisdiction to proceed under Rule 12, but if no proclamation has been issued then the Court cannot impose a fine under Rule 12 without either issuing a warrant or passing an order for attachment. The issue of a warrant or the order of attachment contemplated by Cl (3) is entirely in the discretion of the Court, and may be made to take the place of proclamation or may be in addition to the issue of proclamation.

18. In short the conclusion at which we have arrived is as follows:

19. An order under Rule 12 can be passed only:

(1) If a proclamation has been issued under Clause (2), Rule 10, or;

(2) If no proclamation has been issued, either a warrant has been issued for the arrest of the witness or an order for attachment of his property has been passed or;

(3) If a proclamation as well as a warrant has been issued or an order for attachment of the property of the witness has been passed.

20. If neither of these conditions are satisfied the Court has no jurisdiction to impose fine under Rule 12.

21. It further appears to us that the power of the Court to issue a proclamation or a warrant, or to pass an order for attachment, or to impose a fine is circumscribed by other limitations. By Section 30 the Court is authorized to issue summonses to persons only when their attendance is required to give evidence etc., and by Section 32 the Court is given the power to enforce the 'attendance' of such persons for that purpose by imposing a fine. In other words fine can be imposed only on a person who is required to attend the Court in connexion with a case and who does not appear in obedience to the summons of the Court, and not on a person who after his failure to attend on the date for which he was summoned, is not required to give evidence or produce a document and has not been called upon to appear on a subsequent date. In the present case, as we have already stated, the applicant's attendance was not at all necessary for the purpose of giving evidence as the case was decided on a preliminary point.

22. Equally so, the Court can issue a proclamation under Clause (2), Rule 10 only on being satisfied that the evidence of the witness or the production of the document which he is called upon to produce is material and that he has, without lawful excuse, failed to attend or to produce the document.

23. Before closing our judgment we would like to say a few words as regards the observations of the learned Judges of the Madras High Court that to interpret the sections and rules noted above as we do must lead to:

a great and unnecessary limitation on the powers of Courts to deal with refractory witnesses.

24. It is well settled rule of interpretation that, where a question arises as to the construction of the particular provisions of a statute, the proper course is in the first instance to 'examine the language of the Act and to ask what is its natural meaning.' If the meaning is plain, it is not permissible to give a go-by to that meaning simply on the ground that meaning would lead to undesirable results. In our judgment it is not within the province of a Judge to disregard or to go outside the letter of the enactment according to its true construction.

25. For the reasons that we have given above we allow this application, set aside the order imposing fine on the applicant and direct that the fine, if paid, be refunded to him.


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