V.R. Newaskar, J.
1. This is a petition for revision submitted by the petitioner Gopikishan Munnalal who was a witness in Civil Suit No. 505 of 1954 of the Civil Judge's Court at Mhow. The petition is directed against the order passed by the trial Court for recovery of the amount of his personal bond given by him for his appearance on 24-9-1957.
2. Facts material for the consideration of the legality and propriety of the order are as follows:
Petitioner is a Railway servant and was cited as a witness by the defendant Ramnarayan and summons was issued on his home address in Rajagali Mhow for appearance on 20-8-1957. The summons was served but the witness failed to attend. No diet charges however were tendered to the witness as required under Order 16 Rule 3 C. P. C. The Court, therefore, in ignorance of the fact that he was a Railway Servant directed issue of Muchalka-warrant for appearance on 24-9-1957. The petitioner gave a personal bond in pursuance of the warrant and actually appeared on 24-9-1957. He waited upto 1 P. M. but the Court was otherwise busy. He therefore submitted an application to the Court bringing to its notice that he was a Railway servant and that he had to attend his duty and requesting the Court that he might therefore be summoned through his department. The Court rejected that application and directed forfeiture of his bond and further directed issue of fresh bailable warrant of Rs. 100/- for appearance on 5-11-1957. Notice was also directed to be issued why the amount of the bond be not recovered from him, The witness appeared on 5th and was examined. Before that on 31-10-1957 he submitted an application setting out two grounds why the amount of the bond ought not to be recovered from him viz. that he was a Railway servant and that summons ought to have been sent through his office and that no diet charges had been tendered to him for appearance on 20-8-1957. The Court rejected this application on the ground that he ought to have applied to the Court.
3. On these facts the question for consideration is whether the lower Court was right in ordering forfeiture of the bond and directing recovery of the amount of the same as penalty from the petitioning witness.
4. In my opinion the learned lower Court is not right. In order to appreciate this conclusion it will be necessary to refer to the material provisions of the Code and the rules framed thereunder by the High Court applicable to the Madhya Bharat region.
5. Order 5 Rule 27 C. P. C. which applied to summonses issued to defendants or opponentsreads thus:
'Where the defendant is a public officer (not belonging to the Indian military, naval or air forces) or is the servant of a railway company or local authority, the Court may, if it appears to it that the summons may be most conveniently so served, send it for service on the defendant to the head of the office in which he is employed together with a copy to be retained by the defendant.'
6. It thus appears from this rule that a servant of a railway company can be served either directly or through the head of the office in which he is employed. But it appears from a further Rule No. 67 made by the High Court for this region that if the process is issued for direct service on the railway servant the Court is required simultaneously to send an intimation of the fact to the official superior of the servant concerned in order that, if need be,arrangement might be made for performance of the duties of such servant during his absence.
7. Order 16 C. P. C. deals with summoning and attendance of witnesses. Rule 1 of that Order enables parties to, obtain, on application, summonses to witnesses.
8. Rule 2(1) requires the party applying for such summonses to pay money sufficient to defray the travelling and other expenses including diet charges for one day's attendance of the witness summoned.
9. Rule 3 requires that the amount thus paid should be tendered to the person summoned at the time of serving of the summons.
10. Rule 8 indicates the manner of serving summonses to witnesses. This is to be the same as the one followed in respect of a summons to a defendant and it is this provision which attracts Order 5 Rule 27 C. P. C. and further rules framed by the High Court regarding the same.
11. Rule 10 provides that on failure of the witness to appear the Court ought to satisfy itself that the service was properly effected and if it has reason to believe that the witness has failed to appear in spite of proper service and had no lawful excuse for his failure to attend it may in its discretion issue a warrant for his arrest and may also order attachment of so much of his property as may be necessary to cover costs of such attachment and of any fine that may be imposed by it.
12. Under Rule 11 a witness is permitted to appear and satisfy the Court that he did not, without lawful excuse, fail to attend or intentionally avoid service. The Court on such satisfaction is to direct release of the property attached.
13. Rule 12 provides for imposition of fine up to Rs. 500/- by the Court on failure of the witness either to appear or to satisfy the Court as aforesaid.
14. Rule 16(1) requires a person summoned and attending, to attend not only on the date summoned but at each hearing until the suit is disposed of.
15. Rule 16(2) empowers the Court to require a person summoned to furnish security for his appearance at the next or any other hearing or until the suit is disposed of on the application of either party.
16. Rule 17 provides for application of Rules 10 to 13 where a person having attended in compliance with a summons departs, without any lawful excuse, in contravention of Rule 16.
17. Rule 18 deals with the circumstance where a person summoned as a witness is arrested and brought before the Court in custody. In case his evidence cannot be recorded for any reason the Court is empowered under this Rule to require the witness to give reasonable bail or security for his appearance.
18. These are the material provisions regarding summoning and attendance of witnesses.
19. Now in the present case the petitioner was a railway servant. He was summoned to appear before the Court on 20-8-1957. The summons was sent on his home address but as provided in note to Rule 67, no intimation about this was given to the official superior of the witness. It also appears that the charges required to be tendered to the witness under Order 16 Rule 3 were not tendered. The witness did not appear. The Court directed issue of Muchalka-warrant for his appearance on 25-9-1957.
20. Although it was not disclosed then by the party applying that the witness is a railway servant yet there was at least non-compliance with Order 16 Rule 3 C. P. C. Assuming, however, that the order for issue of Muchalka-warrant was justified when the witness attended on 24th and left at 1 P, M. for fear of an action by the department after intimating to the Court that he was railway servant and had to attend the office, the Court should have considered then or later on, when he was required to show cause why the amount of the bond given by him ought not to be forfeited, whether there was lawful excuse for his departure on 24th at 1 P. M. The witness actually put forward both the aforesaid reasons namely firstly that he was a railway servant and that at least the intimation, regarding the fact that he was required to attend the Court, ought to have been given to his official superior and secondly that no diet charges had been tendered and that for these reasons he could not justly have been ordered to be arrested under a Muchalka warrant nor could he have been required to attend on 24th without the intimation to his superior officer. But the Court dismissed both these grounds merely by saying that he should have applied to the Court.
21. The Court no doubt would be justified in holding the witness responsible for non-compliance with its order for appearance on 20th and for leaving the Court without permission on 24th in case it had done what is required by the rules. Even assuming that at earlier stage it was unware of the fact that the witness was a railway servant when he showed cause he should have held that there was lawful excuse both for his failure to attend on 20th and his having left the Court on 24th particularly when he had intimated to the Court on the latter date that be was a railway servant.
22. In my opinion the witness under these circumstances could not have been required to pay the amount of his bond.
23. The orders dated 24-9-1957 and dated 5-11-57 passed by the Court below for recovery of the amount of his Muchalka involve material irregularity on the part of the Court below in exercise of its jurisdiction and are on that ground set aside.
24. Under the circumstances of the case theopponent Ramnarayan who had cited the petitioneras a witness without disclosing that he was a railway servant ought to pay the petitioner's costsof this petition.