G. Ramanujam, J.
1. There was a suit, O.S. No. 134 of 1959, on the file of the Sub-Court, Coimbatore for partition filed by one Patulinga Nataraja Gounder against his father and his two brothers claiming certain properties as joint family properties and seeking a partition and separate possession of his share. In that suit the appellant herein was appointed as an Arbitrator and he submitted his Award to the Court along with three documents an account book and also two statements given by one K.S. Ramaswami Gounder and K.S. Palaniswami Gounder who were the grand-father and grand-uncle respectively of the plaintiff. The Court passed a decree on the basis of the said Award on 26th March, i960. The said K.S. Ramaswami Gounder, who gave one of the statements before the Arbitrator died on nth September, 1965. On 18th September, 1965, the appellant filed an application to the Court for the return of the documents submitted along with the Award on the ground that he has to return the same to the parties concerned. As the parties to the suit did not have any objection the Court ordered the return of the documents and the appellant got back the same.
2. Subsequently one Arumugam, the brother of the plaintiff in the earlier suit filed O.S. No. 310 of 1965 for partition of the properties left by the deceased K.S. Ramaswami Gounder, the paternal grandfather, claiming those properties as joint family properties. The fourth defendant in that suit, the respondent herein was the daughter of the said Ramaswami Gounder and the paternal aunt of the plaintiff. It was her case that the properties left by Ramaswami Gounder were his exclusive properties and that the plaintiff has no right to seek partition of his properties. She filed an application on 5th July, 1966, under Order 16, rule 10 of the Code of Civil Procedure to compel the appellant, the arbitrator in the earlier suit, to produce the documents taken return of by him from Court by taking coercive steps by way of arrest. She alleged in her affidavit in support of the above application that the plaintiff in the present suit his father and brothers have colluded together and caused the Arbitrator to take back the 'depositions' of Ramaswami Gounder and Palaniswami Gounder filed into Court in the earlier suit, apprehending that they will be confronted with these depositions, that the Arbitrator also had colluded with the parties and has acted against the provisions of law in applying and getting the return of the documents from the Court, that they are valuable documents to establish her defence in the suit, that the Arbitrator when summoned to produce the said documents had not produced the same on the pretext that they have been lost, and that the Arbitrator is keeping back the documents purposely to help the plaintiff and his father and brothers. The appellant filed a counter-affidavit pleading that after taking return of the documents he was having them in his house, that as soon as he received the summons from the Court for their production he searched in his house, that he was able to find only the account book which he had produced into the Court, that the statements given by Ramaswami Gounder and Palaniswami Gounder before him as Arbitrator could not be traced, and that he will make an effort to trace the same and put them into Court as soon as he is able to trace them.
3. The Court below, by its order dated 22nd February, 1969, thought it fit to grant time till 15th March, 1969, to the appellant to make a search and to either produce the two statements or file an affidavit in Court in regard to the loss of the same. When the matter was taken up by the Court on 8th April, 1969, the Counsel for the appellant represented to the Court that the documents directed to be produced could not be traced and as such the appellant was not in a position to produce the same. The lower Court felt that in the face of the allegation of the respondent that the appellant has played into the hands of the plaintiff, it was the appellant's duty to clear himself of the said imputation by producing the documents, that his explanation that the statements are not traceable or lost was difficult to believe especially when one of the documents returned had been made available. He therefore took the view the documents should be with the appellant and that he is suppressing the same probably to help the plaintiff in the suit, and on that view he ordered his arrest and detention in civil prison until he produces the said two statements. It is against this order the appellant has come to his Court.
4. There was some dispute between the parties as to the nature of the documents directed to be produced. In the Award filed by the appellant in the earlier suit, they are referred to as sworn statements. In the application filed by the respondent, these documents are referred to as depositions. But a perusal of the order of the Court directing the return of the documents in O.S. No. 134 of 1959 shows that they were affidavits. It is not also possible to definitely say as to what was the nature of those documents from the records available before this Court. It is however, reasonable to assume that they were sworn statements given by Ramaswami Gounder and Palaniswami Gounder as referred to in the Award. The interesting question that arises for consideration in this case is as to whether the Court can order the arrest of a witness who has failed to produce a document sought for by a party and detain him in civil prison till he produces the document.
5. Order 16 of the Code of Civil Procedure deals with summoning and attendance of witnesses. Rule 1 therein enables a party to obtain summons to persons whose attendance is required either to give evidence or produce documents and Rule 6 states that any person who may be summoned to produce a document, without being summoned to give evidence and any person who may be summoned merely to produce a document shall be deemed to have complied with the summons if he causes such documents to be produced by other means without personal appearance. Rule 7 says that any person present in Court may be required by the Court to give evidence or produce any document then and there in his possession or power. Rule 10 so far as it is relevant for this case proceeds as follows:
Where a person to whom a summons has been issued...to produce a document fails...to produce a document in compliance with such summons, the Court shall, if the certificate of the serving officer has not been verified by affidavit, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching the service or non-service of the summons.
Where the Court sees reason to believe that such...production is material and that such person has, without lawful excuse, failed to...produce the document in compliance with such summons...it may issue a proclamation requiring him...to produce the document at a time and place to be named therein 5 and a copy of such proclamation shall be affixed on the outer door or other conspicuous part of the house in which he ordinarily resides.
In lieu of or at the time of issuing such proclamation, or at any time afterwards, the Court may, in its discretion issue a warrant, either with or without bail, for the arrest of such person, and may make an order for the attachment of his property to such amount as it thinks fit, not exceeding the amount of the costs of attachment and of any fine which may be imposed under Rule 12.
6. Rule 11 provides that if the witness appears and satisfies the Court that he did not, without lawful excuse, fail to comply with the summons or that he had no notice of such a proclamation in time to attend, the Court shall direct the property be released from attachment and shall make such order as to costs of the attachment as it thinks fit. Rule 12 provides for a case where a witness fails to appear or appears but fails to satisfy the Court that he had lawful excuse for non-appearance, under this rule the Court may impose on him a fine not exceeding Rs. 500 having regard to his condition in life and all the circumstances of the case, and may order his property to be attached and sold for the recovery of the fine as also the costs of such attachment. Rule 14 enables the Court at any time it thinks fit to summon a witness to give evidence or produce any document in his possession and may examine him as a witness or require him to produce the document. Rule 15 enables a witness either to attend the Court and produce a document or causes the same to be produced by other means. Rule 18 then proceeds to say that if any person arrested under a warrant (under rule 10) is brought before the Court, the Court can release him on his giving reasonable bail or other security for his appearance and on failing to give such bail or security, the Court may order him to be detained in the civil prison. Rule 20 provides for consequences of refusal of a party to a suit to give evidence or produce any document when called upon by the Court. That rule enables the Court to pronounce judgment against him or make such order in relation to the suit as it thinks fit and according to Rule 21 wherein a party to a suit is required to give evidence or produce a document, the provisions as to witnesses shall apply to him as far as they are applicable.
7. The provisions contained in Order 16, Rule 16 are of a highly penal nature and therefore it has to be construed strictly. Rules 10 and 18 suggest that if a witness fails to produce a document without lawful excuse, he may be arrested and detained in civil prison if he fails to give security for his further appearance before Court, but the period of such detention is limited upto the next adjourned date. As a matter of comparison Rule 20 says that where a party to a proceeding fails to produce documents in his hands the Court is enabled to pronounce judgment against him in the suit, and can it be said such party in addition to his suffering a judgment against him as a result of the default is liable to be arrested and detained in civil prison under Rules 10 and 18 read with Rule 21. I have not come across a case where a party to a proceeding who has failed to produce a document in his hands being arrested and kept in civil prison for such default. While such is the case so far as the parties to the suit before the Court are concerned, is the Court empowered to arrest a witness and keep him in civil prison for his default in producing a document? Having regard to the setting in which the above rules have been placed, I am of the view that the arrest contemplated by Rule 10 or 18 is only to compel the witness to attend the Court either to give evidence or to produce a document and to secure his presence in Court on the date fixed for hearing or for production of a document. If a witness attends the Court in answer to the summons and pleads his inability to produce the document, the Court cannot detain such witness in civil prison till the witness produces the document summoned on the basis of a suspicion entertained by the Court that the witness should have the custody of the document. As in this case where the witness appears before the Court and says that the document has been either misplaced or lost and that even after a diligent search it could not be traced, if the Court detains him in civil prison for non-production the witness has to be in jail throughout his life, if in fact the document had been lost. If the Court forms a wrong impression that the witness should have the custody of the documents, resulting in the arrest and detention of the witness in civil prison, there is no escape for the witness for ever. I am not in a position to construe Rule 10 or 18 as enabling the Court to arrest and detain a witness who appears before the Court and gives a lawful excuse for non-production of the document summoned. Those rules will apply only to cases where the witness neither appears before the Court nor gives a lawful excuse for non-production of the document. Lawful excuse does not always mean an excuse acceptable to Court. In this case the appellant appeared before the Court in answer to the summons and produced one document out of the three documents and represented to the Court that the other two documents had either been misplaced or lost and that even after a diligent search the same could not be traced. But the Court below, merely proceeding on the basis of the averments in the respondent's affidavit that the appellant had in collusion with the plaintiff in the suit taken-back the documents from Court and suppressed the same, held that the appellant should be in possession of the documents and that the production of the same should be enforced by arresting the appellant and detaining him in civil prison. Rule 10 of Order 16 is intended to enable the Court to assist the parties by compelling the obedience of recalcitrant witnesses and it gives a discretion to the Court to take coercive measures in case of disobedience of its orders. But such a discretion must not be arbitrarily exercised. This has been laid down in In re, Premchand Dowlatram I.L.R.(1888) 12 Bom. 63. There a witness was summoned to produce a document in Court in connection with a certain suit. The witness attended the Court, but did not produce the document, stating on oath that it was not in his possession. But the Court disbelieved this statement and fined him under Section 174 of the Code of Civil Procedure, 1882. A Division Bench of the Bombay High Court held that the imposition of fine was illegal and that the jurisdiction of the Court to punish under Section 174 of the Code existed only in the case of a witness, who, not having attended on summons, has been arrested and brought before the Court and that the case of a witness who having a document would not produce it is provided for by Section 175 of the Indian Penal Code and Section 480 of the Code of Criminal Procedure. The Court also held that where a witness denies, on oath, that he has the possession or means of producing a particular document, he can, if he has been guilty of falsehood, be prosecuted for giving false evidence in a judicial proceeding.
8. In Rangaswami v. Konda Reddy A.I.R. 1920 Mad. 1014. Seshagiri Aiyar, J. had occasion to construe the scope of Rules 10 and 12 of Order 16. In that case the witness was asked to produce a document. The witness appeared in obedience to the order of the Court requiring him to produce the document and stated that the document was not in his possession and the Court issued a warrant for the arrest of the witness and subsequently proceeded to attach his immoveable properties. This Court, in revision, held that it is illegal to impose a fine on the witness in such circumstances, characterising the action of the lower Court as 'high handed and unjustified.'
9. Chinnaswami v. Pichai Maricar : AIR1947Mad58 , dealt with a case where a witness, while being examined in Court admitted that he had certain accounts, and the Court called upon him to produce the books of accounts in his possession on another day. The witness took no notice of this direction and neither appeared in Court again, nor produced the accounts. The Court imposed a fine and in default ordered his property to be attached for the alleged disobedience in not producing the document on the date fixed by the Court. This Court, in revision, held that there was no provision in the Code of Civil Procedure or elsewhere entitling the Court to make such an order, that the order imposing the fine was not legal and that the Court, at the most, would have been entitled to draw whatever inference it considered right from the circumstances.
10. While an order imposing fine for non-production of a document by a witness has been held in the above cases to be not legal when possession of the document was denied by the witness, in this case, the lower Court has passed an order of arrest of the witness and his detention in civil prison till the document is produced. Such an order is clearly outside the provisions of either Rule 10 or Rule 18. Rule 12 suggests that even if a witness fails to appear in Court or appears in Court but fails to satisfy the Court as to his default, he has to be let off with a fine not exceeding Rs. 500. In the face of this provision it is not possible to construe Rule 10 as enabling the Court to arrest a witness for non-production of a document and detain him in civil prison till the document is produced. In my opinion the provision of Rule 10 has to be construed as enabling the Court only to compel the attendance of a recalcitrant witness before Court by issuing a warrant of arrest. The form of warrant of arrest of witnesses (Form No. 17) prescribed under Order 16 Rule 10 clearly points out that the arrest is intended only to bring the witness before the Court in view of his failure to attend Court as per the summons issued earlier or of his avoidance of service of the summons. Form No. 18 warrant of committal also suggests that a committal to a civil prison is ordered only because of the witness's failure to give security for his appearance on a later date and not for the non-production of the document specified by the Court. A reading of the provisions of Order 16, Rule 12 suggest that even if the Court disbelieves the witness's statement that he has lost the document in question and considers the excuse given as not lawful, the Court can at the most fine him in a sum of Rs. 500 and attach his properties to realise the said fine. The Court has definitely no power to order the arrest of a witness and detain him in civil prison for non-production of a document. The lower Court has not exercised its discretion in a proper or judicious manner in passing the order in question, and has acted in an arbitrary manner. If really appellant is keeping back the documents in collusion with the plaintiff, the remedy is to invoke Section 175 of the Indian Penal Code, and Section 490 (sic) of the Code of Criminal Procedure.
11. The learned Counsel for the respondent mainly relies upon the fact that the document was taken return of by the appellant from the Court just a few days before the filing of the present suit and that clearly showed that he had colluded with the plaintiff in secreting the documents apprehending that the respondent will take advantage of those documents in the suit. Whatever be the motive with which the appellant took back the documents from the Court, that alone cannot be the basis for a finding that the appellant is suppressing those documents in spite of the summons from the Court. Assuming that the appellant took back the documents at the instance of the plaintiff, if the documents have been really lost as alleged by him, the appellant cannot be put in civil prison throughout his life for non-production of the lost documents. The Court below has come to the conclusion only on the averments made in the affidavit of the respondent that the appellant was in collusion with the plaintiff without any other material. Whatever might have been the motive of the appellant in taking back the documents, if they have been really lost and if he cannot produce the same before the Court for that reason, that should be taken as a lawful excuse for non-production of the documents. The lower Court's finding that the appellant is in fact in possession of the documents is merely based on probabilities and surmises. It is not possible for me to accept such a finding and allow the order of arrest and detention ordered by the lower Court to stand.
I herefore, allow the appeal with costs and set aside the order of the lower Court.