In Re: Peta Narasayya

Spencer, J.—The appellant was summoned on 26th January 1924 to appear as a witness on 8th February. He did not appear and a warrant

was issued and he was fined Rs. 40 for disobedience of summons. His explanation was that, as he was going to Court, after arriving at the place

where the Court was held, he was met by the plaintiff and defendants who told him that the case had been adjourned. We have no means of testing

whether this statement was true. The parties were not examined to corroborate him, but the Judge did not accept the explanation. He only gave

him five days time to pay the fine.

It is argued that the Subordinate Judge acted without jurisdiction inasmuch as there was no issue of a proclamation or attachment of property

before the fine was imposed. This argument is based on the decisions in Ashutosh Mullick v. Secretary of State [1920] 57 I.C. 302 and Ram

Gopal v. Secretary of State [1920] 31 C.L.J. 363. I regret that I must express dissent from the opinion of two learned Judges of the Calcutta High

Court who decided these oases. I am unable to construe the provisions of Rules 10 to 12 of Order 16 of the CPC as meaning that the issue of a

proclamation or an order for attachment of property are conditions precedent to the imposition of a fine for non-attendance of a person who has

been summoned to attend a Civil Court. Beachcroft, J., treats Rule 12 as an alternative to Rule 11 and he understands the words ""such person"" in

Rule 12 as meaning a person against whom a proclamation has been issued or whose property has been attached. In my opinion ""such person

means a person to whom a summons has been issued and who fails to attend under Rule 10(1). Rule 12 itself provides both for cases where an

attachment has been made and for cases where an attachment has not been already made, but is made in enforcement of the order of fine. It seems

to me that to say that a Judge cannot fine a witness for disobedience of summons unless the preliminaries are first gone through of attaching his

property or issuing a proclamation against him is to put a great and unnecessary limitation on the powers of Courts to deal with refractory

witnesses. The Subordinate Judge''s order was thus passed in the exercise of his jurisdiction.

There is nothing to show that the witness had ever previously disobeyed a summons of Court. He did not prove that he was told by the parties

that the case had been adjourned; and even assuming that story was true, it would not legally be a sufficient excuse for non-attendance. The fine of

Rs. 40 is rather excessive and is in contrast with the fact that all the other witnesses who were fined in the case were excused when they appeared

before the Court and represented their reasons for non-appearance. I reduce the fine imposed by the lower Court from Rs. 40 to Rs. 5 (five

rupees). The excess will be refunded. In other respects the appeal is dismissed. No costs.

Ramesam, J.

I entirely agree. The case in Ashutosh Mullick v. Secretary of State [1920] 57 I.C. 302, merely follows the earlier case in Ram Gopal v.

Secretary of State [1920] 31 C.L.J. 363 and contains no additional reasoning. It seems to me that the argument addressed to Beachoroft, J., in

Ram Gopal v. Secretary of State [1920] 31 C.L.J. 363, and which was rejected by him namely that Order 16, Rule 12 should be construed

independently of Rule 11, and should be taken to refer to Rule 10, is sound and might have been accepted by him. I am of opinion that Order 16,

Rule 12 deals with all cases of disobedience not covered by Rule 11, whether there has been attachment or not. If it were not so, there would be

cases of flagrant disobedience with which Courts would have no power of dealing; but, apart from such considerations, Order 16, Rule 12

contains clear indications that it deals also with cases where there has been no attachment. It provides for a fresh attachment of property where the

witness has failed to give a satisfactory explanation, if there, has been no attachment of property, and if there has been an attachment already, for

sale. Both cases being expressly referred to in the section, it is difficult to construe Order 16, Rs. 12 as being confined to cases in which there has

been an attachment.

I agree with the order passed by my learned brother.