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Sib Kumari Debi, Executrix to the Estate of Ram Gopal Chetlangia Vs. the Secretary of State for India - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in55Ind.Cas.425
AppellantSib Kumari Debi, Executrix to the Estate of Ram Gopal Chetlangia
RespondentThe Secretary of State for India
Excerpt:
civil procedure code (act v of 1908), order xvi, rules 10, 11, 12 - non--appearance in obedience to summons--order imposing fine--jurisdiction. - 1. this rule is directed against an order by which the assistant settlement officer imposed a fine of rs. 50 on the petitioner and an order on appeal by the settlement officer affirming that order. the assistant settlement officer purported to act under order xvi, rule 12, civil procedure code.2. it appears that a summons was served on the petitioner asking for certain information regarding a touzi in which she owns an eight-annas share. the summons was served on the 28th may on an employee of the petitioner. the petitioner states that on the 29th may she sent an officer to the assistant settlement officer, but he was told to go away on the ground that this was not the day for hearing the matter. in fact the 30th was the date fixed. then a notice was issued on the petitioner to show cause.....
Judgment:

1. This Rule is directed against an order by which the Assistant Settlement Officer imposed a fine of Rs. 50 on the petitioner and an order on appeal by the Settlement Officer affirming that order. The Assistant Settlement Officer purported to act under Order XVI, Rule 12, Civil Procedure Code.

2. It appears that a summons was served on the petitioner asking for certain information regarding a Touzi in which she owns an eight-annas share. The summons was served on the 28th May on an employee of the petitioner. The petitioner states that on the 29th May she sent an officer to the Assistant Settlement Officer, but he was told to go away on the ground that this was not the day for hearing the matter. In fact the 30th was the date fixed. Then a notice was issued on the petitioner to show cause why she should not be fined for not carrying out the order. The petitioner's officer showed cause, but he did so on paper which did not bear a Court fee. On the 10th June the order complained of was made by the Assistant Settlement Officer.

3. The objection taken against the order is that the procedure laid down in Rules 10, 11 and 12 of Order XVI, Civil Procedure Code, had not been carried out. Rule 10 provides in the fourth clause for issue of summons to give evidence or produce documents. The second, clause of that rule provides that where a person summoned has failed to attend, the Court may issue a proclamation requiring him to attend. The third clause of Rule 10 provides that instead of issuing a proclamation or at the time of issuing a proclamation or at any time afterwards the Court may issue a warrant for arrest of the person and make an order for attachment of his property. Then Rule 11 provides that after the attachment of the property, if the person appears and satisfies the Court that he did not without lawful excuse fail to comply with the summons or intentionally avoid the service, and when he has failed to attend at the time and place named in the proclamation that he had no notice of the proclamation, the Court shall direct that the property be released. Rule 12 provides that the Court may where such person does not appear, or appears but fails to satisfy the Court, impose upon him a fine.

4. In support of the Assistant Settlement Officer's order it is now argued by the learned Government Pleader that Rule 12 must be read independently of Rule 11 and that in fact it must be read immediately after the first clause of Rule 10, that is, that where a person has been summoned, if he fails to appear in answer to the summons, then the Court may proceed under Rule 12. It seems to me that that contention cannot be upheld. Rule 12 provides two alternatives, that is, non appearance of the person or his appearing and failing to satisfy the Court. That seems to me to be the alternative, of the facts which are contemplated in Rule 11, namely the person appearing and satisfying the Court, To put it in other words, Rule 11 provides for a case where the person satisfies the Court that he has not intentionally failed to carry out the order; Rule 12 applies to the alternative case of a person failing to satisfy the Court, whether he appears in order to offer an explanation or no. But in either case whether the facts are those contemplated in Rules 11 or Rule 12, the Court can only proceed after attachment of the property. In the present instance there has been no attachment of property and the Assistant Settlement Officer's order was without jurisdiction and must be set aside. The fine, if paid, must be refunded to the petitioner.

5. I make no order as to costs.


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