Avadh Bihari Saran vs S.K.P. Singh

Dhavle, J.—This is an appeal against an order of the Subordinate Judge of Gaya, fining the appellant Rs. 100, besides ordering him to pay Rupees 3 of the cost of an attachment u/s 17, read with Rule 10 of Order 16, Civil P.C. The appellant was a defence witness in a case tried by the Subordinate Judge, and had been examined as such on 13th April 1934, and cross, examined on the following day. It appears that the plaintiff afterwards moved the Court for summoning the appellant for further cross-examination, and that the appellant, an employee of the District Board, appeared in Court on the 15th of that month. On this date, he was not cross-examined; and the learned Subordinate Judge finds that the appellant was directed to appear for cross-examination on 17th May and that as appellant failed to comply with that order, he had rendered himself liable to punishment under Rule 17, read with other Rules, of Order 16, Civil P.C. The order-sheet does not show that on 15th May 1934, the appellant was ordered to reappear on the 17th.

It does appear from the order sheet however that on the 16th work ran short and, at the instance of the plaintiff, an attempt was made to get hold of the appellant from the District Board Office and let him be cross-examined by the plaintiff. This attempt failed because the appellant at first declined to come unless permitted by his superior, the District Engineer; and when the Court sent a slip to the District Engineer, and the District Engineer passed the necessary order, the appellant was not to be found. This incident, which is supported by materials available in the record seems to have led to some confusion in the mind of the lower Court; for the learned Subordinate Judge says, not only that the appellant had been ordered to come on 17th May 1934, but that before taking steps for compelling his attendance, a slip was sent to the District Engineer asking him to direct his clerk--the appellant--to come, that the District Engineer ordered the appellant to comply at once "but still he would not come," and that thereupon the Court again wrote to the District Engineer and was informed in reply that the appellant was not in the office.

There is no material to show that the appellant was in the District Board; Office at all on the 17th. On the contrary, there is a note, written or signed by the Chairman of the District Board on 20th May, not very long afterwards, that in the absence of any further instructions from the Court, that is to say, instructions after 15th May the appellant had been deputed on District Board work to Calcutta, and was likely to come back within two or three days. The appellant''s case was that, as a matter of fact, he was away in Calcutta on District Board work on the 17th, the date on which the Subordinate Judge has found that the appellant wilfully absented himself from Court though required for cross-examination as a witness. Much of what happened in connexion with this matter is not to be found in the order sheet of the main case at all. On 18th May, the Subordinate Judge took some evidence, recited certain facts, and directed the issue of a warrant of arrest.

It was in these recitals that he spoke of the order passed by the Court on 15th May directing the appellant to attend the Court on 17th, being "verbally communicated to him in Court," and also of the appellant declining to come on the 17th "still he would not come". When the learned Subordinate Judge wrote his final order on 22nd May he expressed himself somewhat differently:

He was asked to re-appear on 17th May 1934, in open Court as the result of a discussion between the Court and the lawyers o� the parties, when his evidence was likely to be taken up, and to the hearing of the Court. This is clearly not quite the same thing as saying that the appellant was told within the hearing of the Court and in open Court that the appellant was to re-attend on 17th May; and indeed, if that is what the Subordinate Judge had intended, it is difficult to believe that he would have proceeded to record the evidence of his peshkar ,on the point on 18th May. That the learned Subordinate Judge was under the impression that the appellant had been ordered to re-attend on 17th May is, of course, quite clear; the slips he sent to the District Engineer would be otherwise quite unintelligible. But the impression of the Subordinate Judge must be distinguished from what the appellant, as a witness, understood the situation to be. It seems clear from the note of the Chairman that "the appellant was not in Gaya at all on 17th and it is not easy to believe that his absence in Calcutta on District Board work on that day was meant as a defiance of any order passed by the Court on 15th May, especially when we can find no trace of any such order in the records.

There was apparently some confusion on one side and on the other. As regards the confusion on the part of the learned Subordinate Judge, reference has already been made more than once to the remark of the learned Subordinate Judge that on 17th May the appellant "still would not come." Clearly, this is not a case where it is possible to hold on the record that the appellant failed on 17th May to re-attend as required by the Court. It is by no means clear that he understood that he was so required by the Court; and there certainly is no definite order of the 15th or the 16th or the 17th pointing to the existence of any such direction.

In this view I would allow the appeal and set aside the order of the Subordinate Judge. The fine and penalty, if recovered, must be refunded.

Mohammad Noor, J.

I agree.