Seshagiri Aiyar, J.
1. This is an application to revise the order of the Subordinate Judge of Vellore imposing a fine and directing the attachment of the property of a witness in a judicial proceeding. As, in my opinion, there has been a serious miscarriage of Justine, I shall shortly state the fasts before dealing with the question of law.
2. The petitioner was summoned as a witness in Original Suit No. 42 of 1918 on the file of the Subordinate Judge. The summons was dated the 20th February 1919, and it direst-ed him to appear with the account relating to the sum of Rs. 4,600 credited to the name of Manickammal and the account relating to petty transactions adulated by her in his many accounts. He was asked to appear on the 25th of February. He did appear on that date and deposed as follows: of have accounts for money dealings. I was summoned by the defendant to produce my accounts. They related to five years ago. As my accountant is ill and they are lying in a lumber room, I could not produce them. If I find the accounts, I will produce them but I am not certain I will get them.' That is all that happened on the 25th. Then on the 27th an application was made to the Subordinate Judge by the defendant for a warrant to issue against the witness, 'with a view to secure the accounts in his possession and have the same admitted in evidence.' In the affidavit accompanying the application it was stated in paragraph 3 that, when be was examined, ' he said be was served with the summon, that the Kanakupil Lal put the account somewhere among the bundle of disposed of records and that he did not bring the same as he was ill and thus pleaded vain excused' It may be noticed that this statement in the affidavit is not an accurate representation of what the witness deposed, Apparently the Subordinate Judge did not scrutinize the affidavit, but directed the warrant to issue on the 27th February in these terms: Whereas so and so has been duly served with a witness summons but has failed to attend the Court, you are hereby ordered to arrest the said witness wherever, he may be found and bring him before this Court. Hearing date 1st March 1919,' and then in the remarks column it was stated, you are to appear with the Parade accounts in your many relating to Maniokammal and Bala-krisbna Redid from July 1914 up to date and give evidence.' This is the first time that we hear of the fixing of the dates for the account and of the connection of Balakrishna Reddi with the accounts. From the affidavits filed, it would appear that, after the 27th February, the witness was away from Vellore. On the first of March, an application will made for the issue of a proclamation. This application was supported by an affidavit which contains many inaugurate statements. In paragraph 2 the affidavit states: 'He received the summons, but tame as a witness on the side of the plaintiff, etc and deposed that the account were plated among the bundle of disposed of papers and that it was not possible to search for and produce the same.'
3. In paragraph 3, it is stated: It appears that when the process server went with the warrant, a false endorsement was made on the warrant and return was made thereof.' The amin was not examined. No witness was examined about the alleged false endorsement and no attempt was made to support this affidavit by any further affidavit. Still the Subordinate Judge apparently was satisfied with the truth of the allegations in the affidavit and directed the proclamation to issue, returnable on the 4th March, On that date, the petitioner as well as his gummite appeared and stated that the accounts were not forthcoming vide paragraph 5 of his affidavit of the 7th March and also the affidavit of his Kanakupil Lal of the same date The fast that he appeared on the 4th and made the statement is not dispute.
4. Then we tome to the present order, which was based on an affidavit filed by the defend is ant on the 6th Marsh 1919 This affidavit contains as many inaccurate statements as it is possible to put in an affidavit. It is surprising that the Subordinate Judge who was being rushed through from one step to another has not chosen to scrutinize the allegations contained in this affidavit.
5. In paragraph 2 of the affidavit it is stated that 'Rangaswami Reddi was summoned by me to produce his day books and ledgers from July 1914.' In the original no mention was made of the day book or of the ledger, and no date was given for the accounts relating to transactions between him on the one hand and his brother Balakrishna Reddy and his wife Maniokammal on the other hand. There is no such statement in the summons to the witness. As I said before, Balakrishna Reddi's name does not appear in the original summons.
6. In paragraph 3, it is stated that T. Rangaswami Reddi 'admitted that the said accounts were in his many and that as his clerk was ill at Madras, he will produce them later on.' This is a palpably perverse version of what the petitioner stated in the witness-box, and yet the Subordinate Judge has quietly accepted these allegations and has taken proceedings on it.
7. In paragraph 4 it is stated: 'I learn, and believe the same to be true, that he evaded the service of the warrant' There is no affidavit from the process-server that the warrant was evaded.
8. In paragraph 5 it is stated that the witness appeared before this Court and produced some account-books relating to the year 1915 and did not produce the material documents summoned for by me relating to the years prior to 1915, though he took time on that day to produce them before the rising of the Court on that day,' There is nothing on the record to justify such a statement.
9. Mr. Anantakrishna Aiyar suggested that very likely an undertaking of this nature was made to the Subordinate Judge on the 1st of March, There is no affidavit before me to support this suggestion. The records do not contain any such undertaking,
10. In paragraph 8, it is stated: I learn from my brother-in law, Venkataehella Reddi, the defendant's 1st witness in this case, that the witness T. Rangaswami Reddi admitted yesterday the existence and possession of account books summoned for by me.' No affidavit from Venkatachella Reddi was produced in support of this admission, and there is no record of such an admission in the papers.
11. On these allegations the Subordinate Judge ordered that the house of the petitioner should be attached. Thereupon the petitioner applied to the Subordinate Judge to set aside the order and filed an affidavit in support of his application, which denied all the allegations made by the defendants. This application was rejected.
12. On these facts, the question is whether the order of the Subordinate Judge is right. There can be no doubt that the proceeding was highhanded and unjustifiable. The speed with which the applications have been made and granted and the inaccuracies which have been allowed to go unchecked in the various affidavits, are calculated to impair the faith of litigants in the administration of justice.
13. The question for me is whether under Section 115 of the civil Proaedure Code it is competent for this Court to set aside the, order.
14. Mr. C.V. Anantakrishna Aiyar suggested that I should stay my hands, because an appeal against the same proceeding was pending before the District Court. The petitioner, having regard to the seriousness of the proceedings taken against him, has ex major castellan filed an appeal, lest this Court should reject his application on the ground that an appeal lies. I am satisfied that no appeal lies, because the application was in terms asked for and made under Rule 12, Order XVI. Against it there is no appeal. I am equally clear that the Subordinate Judge had no jurisdiction to pass the order.
15. The procedure for summoning witnesses and the production of the documents is provided for in Order XVI. Rule 10 deals with the failure to produce the document mentioned in the summons. Sub-clause (1) directs the Court to examine the serving officer regarding the service or non service of the summons. Sub-section (2) enjoins on the Court the duty of satisfiying itself that the production is material and that the person who has been asked to produce hap, without lawful excuse, failed to produce the document in compliance with the summons. Then power is given to issue a proclamation requiring the witness to produce the document at a time and place to be named therein.
16. Sub-clause (3) provides that, in lieu of or at the time of issuing such a proclamation or at any time afterwards, the Court may, in its discretion, issue a warrant. Now, the Subordinate Judge, for reasons best known to himself, directed the warrant to issue in the first instance. That certainly is it in his powers, although I should think that it was the exercise of a power which few Courts in this Presidency would do under similar circumstance.
17. After issuing a warrant, the Subordinate Judge has certainly no right at a later stage to issue a proclamation. The proclamation is the first step and the warrant or the attachment are either concurrent or succeeding steps. There is provision which would enable a Court, which had issued a warrant, to issue at a later stage a proclamation against the witness. Under Rule 12 a Court is empowered to impose a fine. That can only be for disobedience to a lawful order made against him, Attachment was made notwithstanding the fact that, on the 4th March, the witness appeared and said that he had not the documents in his possession. This was a wholly illegal exercise of power. Such a procedure as this has been condemned by the Bombay High Court in Fremchand Dowlatram, In re 12 B. 63 The. facts of that case are practically on all fours with the one I have to deal with, I may say at one that if there had been a judicious exercise of discretion and if the facts warranted the extreme step taken in the each, I would not have considered the reversal of the steps, namely, first issuing the warrant of arrest, then issuing the proclamation, as entitling the petitioner to set aside the order of the Subordinate Judge in revision. After all, the powers given to this Court under Section 115 are intended to be exercised for advancing justice, and not merely for technical irregularities. But in this case the wholly uripreeedented action taken by the Subordinate Judge compels me to resort to technicalities for the purpose of doing justice to a much aggrieved party. I am glad that, without violating the letter of Section 115, I am enabled to do it.
18. It is in evidence that the witness against whom all these proceedings have been taken is a respectable citizen of Vellore, who pays to Government by way of income tax alone over three thousand rupees a year. Against such a person to issue a warrant first, to direst proclamation immediately after, then to direst the attachment of his house, all within the space of less than a fortnight, must have caused him considerable pain and anxiety. Against persons of such status in life at any rate, the Subordinate Judge ought to have weighed every fast placed before him before subjecting them to the various indignities I have referred to. The procedure adopted by the Subordinate Judge from the beginning to the end, to say the least, was misconceived and they were based on allegations which he never troubled himself to verify. I Bet aside the order with costs to be paid by the counter-petitioner. All the proceedings taken against the petitioner are quashed, and there will be the necessary restitution if any property belonging to the petitioner has been taken possession of by the Court.