Chinnasami Thanjiroyar vs Pichai Maricar

Bell, J.—This petition arises out of an order made by the District Munsiff of Tiruturaipundi inflicting a fine of Rs. 50 on the petitioner who

had appeared as a wtiness for the plaintiff in a suit before him. The petitioner vainly appealed to the District Judge of East Tanjore. He therefore

comes to this Court on the ground that the District Munsiff had no jurisdiction to impose a fine and that therefore the District Judge was wrong in

confirming such an order.

A preliminary objection was taken on behalf of the respondent that in such a matter only one appeal is allowed and reference was made to

Section 104(h) of the Code of Civil Procedure. This section, however, refers to an order imposing a fine and made under the provisions of the

Code. As I hold that the order was not made under any of the provisions of the Code and that the learned District Munsiff had no jurisdiction, this

section does not apply and the objection must be overruled.

The question is whether the District Munsiff has power to punish in respect of contempt of Court in circumstances such as appear in this case.

The petitioner,as stated, was a witness for the plaintiff in a suit. During his examination it emerged that he had accounts of some kind which might

throw light upon the issue between the parties. He had not the accounts with him and the District Munsiff ordered him to produce them in Court on

another day. The petitioner apparently took no notice of this direction and neither appeared in Court again nor produced the accounts. The District

Munsiff, who had apparently taken a very unfavourable view of the petitioner''s demeanour in the witness box, had no difficulty on the application

made by the defendant-the present respondent, in regarding his disobedience as directly in contempt of the order to produce the accounts. He

therefore imposed the fine and in default ordered that the petitioner''s property should be attached and sold.

The learned District Judge confirmed the order and held that the Court can punish contempts which take place ""under its note in proceedings

before it."" He cites as authority for this proposition Sections 480 and 485 of the Code of Criminal Procedure. It is not necessary to set out these

sections at length and it is enough to say that they relate to offences committed in the view or presence of the Court or by a witness or a person

called to produce a document before a Criminal Court who refuses to do so and offers no reasonable excuse for his refusal. In such cases the

Court may institute proceedings against him in accordance with the Code.

The facts here were different. This was a civil suit and one of the parties had chosen to call the petitioner as his witness. It is difficult to

understand how the plaintiff or his counsel was unaware of the existence of these accounts if they had any relevance to the case. It appears to have

been a matter entirely for the plaintiff. In a civil suit the Court is not sitting to do some kind of abstract justice but is there to decide the issues

between the parties on the evidence, oral and documentary, which they care to produce. Where a witness discloses, accidentally perhaps and may

be to the surprise of the counsel who has called him, that he has in his possession books of account which may throw light on the case, it is for that

counsel to take steps to see that they are produced as soon as possible lest their non-production, after the fact of their existence has been stated

by his own witness, leaves the Court to draw an inference against his client and endangers his case. It is not a matter for interference by the Court,

beyond, may be a suggestion that the party concerned, that is to say in this case the plaintiff, might do well to cause the production of the books.

If either party needs the assistance of the Court in procuring documentary evidence the Court may make orders in accordance with the rules.

(See Order XIII and Order XVI of the Code of Civil Procedure). In proper cases the Court may inflict penalties on those who disobey orders

made in accordance with the rules. The Court has of course power to require persons present in Court to give evidence or to produce documents

which they may have then and there in their possession or power; Order XVI, Rule 7. The Court does not of its own accord issue a summons

under Order XVI, Rule 10.

Section 165 of the Evidence Act gives a Judge wide powers in the conduct of a case, criminal or civil, and enables him to order the production

of any document. The section provides however that a witness cannot be compelled to produce any document which he would be entitled to

refuse to produce under Sections 121 to 131 if the document were called for by the adverse party. In this case it does not appear that the learned

District Munsiff considered that he was acting under the provisions of Section 165 of the Evidence Act, for, as appears from his order, the matter

first arose over a reference by the witness to a note made by him in a private diary. Later he was questioned whether he maintained accounts of his

family income and expenditure and the witness replied in the affirmative, whereupon the Court directed him to produce such accounts the next day.

There was no discussion whether the witness could have refused to produce such documents, or about the precise relevance of such accounts to

the suit before the Court.

In my opinion, on the facts as they appear from the judgments of the two lower Courts, the matter really became one of inadequate preparation

of the plaintiff''s case in that a witness was called without the plaintiff''s counsel knowing of the evidence which he would be able to give, or, on the

other hand, in that he knew what the evidence was but was prepared to suppress some part of it. In such circumstances, in my opinion, the Judge

would have been entitled to draw whatever inference he considered right from the circumstances. I can find nowhere any authority for the

proposition that he could summarily inflict a fine upon the petitioner for non-production of his private and family accounts. Much stress was laid by

the respondent-defendant in the suit, who in fact initiated the proceedings against this witness, on the views put forward in Chunni Lal Vs.

Emperor, . The facts there were certainly not unlike those in the present case and the learned Judge says:

When the witness or party is present, and the Court directs him by word of mouth to do a certain act, and there cannot be the slightest mistake as

to the witness or the party having received information of such direction, it will be merely making a travesty of procedure to insist upon the Court

issuing a summons to a witness who is present followed by a proclamation to the witness who is still present, and then attaching his property to

make the witness who is present before the Court understand that a document is wanted from him.

One may sympathise indeed with such a view, but the question is whether the rules provide for such a summary procedure as was followed in that

case and in this. With the greatest respect I cannot find any provision in the Code or elsewhere entitling the District Munsiff to make the order

against which complaint is made. In my opinion the order of the District Munsiff must be set aside, the fine remitted and this petition allowed with

costs throughout.