Decided on July 26,1960

O C MATHUR Appellant
STATE Respondents

Referred Judgements :-



SARJOO PROSAD, C. J. - (1.)THIS appeal is directed against the order of the Senior Civil Judge, Jalore, dated the 6th April, 1957, imposing a fine of Rs. 50/- on the appellant under O. 16 R. 12 C. P. C.
(2.)THE brief facts are that a civil suit No. 54 1957, Jethmal Vs. Ambsingh, was pending before the learned Civil Judge, in that suit the defendant applied for summoning of certain witnesses including Dr. O. C. Mathur. Dr. Mathur was, therefore, summoned by the court to appear and give his evidence on the 12th February, 1957. He did not put in appearance on that date in spite of service of summons, nor does it appear that the summonses were returned on or before the 12th February, 1957. THE court then fixed another date for recording the evidence of Dr. O. C. Mathur and this time he was summoned to appear on the 2nd April, 1957. Again he did not attend court in spite of service of summons on him. THE court, after having waited for his appearance until the end of the day, at about 4 P. M. , passed orders directing notice to be issued to him to show cause why he should not be prosecuted under sec. 174 I. P. C. for refusing to comply with the summonses of the court is:;ued on both the earlier occasions. THE notice gave him time to show cause by the 5th April, 1957. Again on that date, the doctor himself did not appear but a lawyer who represented him showed cause and raised objections to the procedure adopted by the learned Senior Civil Judge. By the order in question, the learned Senior Civil Judge held that all these objections were unfounded and proceeded to impose a fine on the appellant for his intentionally disobeying the court's summonses without any lawful excuse. It is against this Order that the appeal has been preferred and the main point which has been submitted for our consideration is whether under O. 16 R. 12 of the Code of Civil Procedure the court was entitled to impose the fine in question.
Learned counsel for the appellant Mr. Bhandari has not contested the finding of the court that on both the occasions Dr. Mathur received the summonses himself and made endorsements on the summonses; but in spite of it he did not appear on the dates fixed for his appearance as mentioned in the summonses in question for his examination in court. An attempt was made in respect of the first summons to tell us that the summons was actually received by the receipt clerk in the office of Dr. Mathur; but when Mr. Bhandari's attention was drawn to the endorsement on the summons itself which bore the initials of the appellant, he very rightly abandoned the position. Therefore, there can be no doubt that these summonses had been personally served on Dr. Mathur and yet the doctor did no:: appear. It was said on behalf of Dr. Mathur that on the second date, he was indisposed and, therefore, could not appear in court. The learned Senior Civil Judge has given very good reasons for coming to the conclusion that this was only a pretext put up by Dr. Mathur and there was no substance at all in the plea. Even on the 5th April, Dr. Mathur himself did not appear to show cause. The court observes that on the 2nd April 1957, the day in question, there is nothing to show that Dr. Mathur did not attend office and look after his other professional engagements; and, therefore, it was difficult to hold that he was so indisposed as not to be able to attend court. In any event, if his excuse was genuine, he could have appeared in court and applied for adjournment on that ground, as he lived only at a distance of two furlongs from the court. He did nothing of the kind and these factors clearly indicate that he deliberately tried to disobey the processes of the court. These facts, therefore, cannot be doubted.

The question then is whether the court was justified in law on the provisions of O. 16. R. 12 C. P. C. in imposing the fine that it did. Mr. Bhandari has confined his submissions mainly to that aspect of the matter. He contends that Rules 10, 11 and 12 of O. 16 must be read together and if they are so read, learned counsel submits, it will follow that until all the coercive processes contemplated by rules 10 and 11 had been exhausted, no fine could be imposed on the appellant. He says that in the first instance if the court had reason to believe that the examination of the doctor was material and that Dr. Mathur without any lawful excuse had failed to attend in compliance with the summonses of the court or had intentionally avoided service, the court could issue a proclamation requiring him to attend the court and to give evidence. The court could also in lieu of or at any time after issuing of such proclamation issue a warrant either with or without bail for the arrest of the appellant and could make an order for the attachment of his property and if after such warrant of arrest or attachment of property or issue of proclamation, the appellant appeared and did not satisfy the court that there was any lawful excuse for his failure to comply with the summonses and that he was not intentionally avo-ding service, it is only then that the court could proceed to impose a fine as contemplated by rule 12 of O. 16. In support of his contention, the learned counsel has referred to certain decisions of the Calcutta, Allahabad and Lahore High Courts. We must observe that the Calcutta decision in Nabadip Chandra Nandi Vs. Secretary of State (1) does support the contention of the learned counsel; but we may point out at the outset that there appears to be a conflict of judicial opinion on the point and the views expressed in many of the decisions cited at the bar appear to be in opposition to the view taken by the Calcutta High Court. The decisions show that there is a conflict of opinion even in each of the High Courts' of Allahabad and Lahore and that the later view in these courts is in favour of the interpretation that under rule 12 of O. 16, even without adopting the coercive measures as mentioned in sub-rules (2) and (3) of rule 10, the court could proceed to impose a fine. We would, therefore, for the present without referring to the decisions in question proceed to deal with the rules.

Rule 10 points out that where a person to whom a summons has been issued either to attend to give evidence or to produce a document fails to attend or to produce the document incompliance with such summons, the court under sub-rule (1) will first of all satisfy itself as to whether the summons has been duly served. Sub-rule (2) then says that if the court has reason to believe that the evidence of such person or the production of such document is material and that such person has, without lawful excuse, failed to attend or to produce the document in compliance with the summons of the court, then the court, may institute some of the coercive processes contemplated both by sub-rules (2) and (3 ). It is significant that the words "such person" which occur in sub-rule (2) have reference to the person to whom summonses have been issued and duly served and who in spite of the service of summonses has avoided appearing in court without any lawful excuse or avoided producing the document which he was called upon to produce. This is the qualification of the person concerned to whom reference has been made under sub-rule (2) of R. 10. Rule 11 merely says that in case the process of attachment has been issued and the person appears and satisfies the court that there was lawful excuse for his non-appearance and his failure to comply with the summonses, the court in that case may release the property attached or pass other consequential orders. Rule 12 in our opinion appears to be quite independent of the coercive measures contemplated by the provisions of rule 10. Rule 12 says that where such a person to whom we have already referred does not appear or appears but fails to satisfy the court that the was any lawful excuse for his non-appearance or non-compliance with the summonses of the court, the court may proceed to impose a fine upon him. Mr. Bhandari contends that the words "such person" used in rule 12 can only refer to a person contemplated by rule 11 or rule 10 against whom a proclamation or an order for attachment of his property or warrant has been issued. We are not inclined to accept that contention. 'such person' there means a person who has failed to appear in spite of summons having been duly served on him and may include also a person against whom for that reason a warrant or an order of attachment or a proclamation has been issued. If compliance with the coercive provisions of rule 10 or 11 were an essential pre-requisite for taking action under rule 12, then we do not see any reason why R. 12 would again mention about the issue of an order of attachment in case attachment had not already issued. That would be clearly redundant. Attachment under rule 12 can be ordered even if there is no attachment earlier under rule 10. Therefore the natural interpretation appears to us that the coercive measures contemplated by rule 12 are independent of the coercive measures contemplated by rules 10 or 11 of O. 16, C. P. C. We were, however impressed by the consideration that rule 12 by itself does not provide for any notice to show cause on the person concerned before imposing a fine on him, but the answer to the question is that before imposing a fine, the court would obviously hear him on principles of natural justice as to whether he had any justification for his non-appearance and would not summarily impose a fine on the person without giving him any chance of satisfying the court that he had not deliberately avoided the summonses or the processes of the court. We are strengthened in this view of the law also because of the provisions of sec. 174 of the Indian Penal Code where mere disobedience of summonses amounts to an offence, if the disobedience is intentional and deliberate. Sec. 174 says that where a person legally bound to attend in person or by an agent at a certain place and time in obedience to a summons, notice, order or proclamation proceeding from any public servant legally competent to issue the same, intentionally omits to attend at that time or place where he is bound to at end, he is liable to be punished with imprisonment or fine as stated in the section. The framers of the rules, therefore, must have been conscious of this provision of the law which was certainly an earlier statute. It could not have been therefore intended that intentional disobedience of summonses by itself would not authorise the court under rule 12 to impose a fine. An action under rule 12 would be certainly a more lenient view of the matter than what is contemplated by sec. 174 I. P. C. If Mr. Bhandari's argument is adopted, we will be reduced to the position that intentional disobedience of the court's summonses cannot be visited with the imposition of a fine unless more grievous proceedings are adopted such as affecting the property of the person or issuing a warrant of arrest against him though he could be visited with more serious consequences if tried under sec. 174 I. P. C. We do not think that it would be a justifiable view to take having regard to the considerations which we have pointed out above.

With these observations, we would briefly turn to some of the cases which have been cited at the bar. The decision in Nabadip Chandra Nandi Vs. Secretary of State (1) which is a division bench judgment and on which great reliance has been placed by Mr. Bhandari is the decision directly in support of his contention. It was held there that no order under O. 16 R. 12 could possibly be made until the procedure laid down in R. 10 had been followed where that rule applied. Unfortunately, it is a very short judgment and no reasons have been assigned for the decision nor do we get any assistance from the judgment on a discussion of the relevant rules. We are, therefore, not surprised that it did not find favour with a judgment of the Madras High Court in In re Peta Narasayya (2 ). This is also a division bench judgment where each of the learned Judges carefully applied their mind to the matter and found themselves unable to adopt the view taken in the decision of the Calcutta High Court referred to above. Spencer J. there observed in the Madras case that in his opinion 'such person' mentioned in rule 12 meant a person to whom a summons had been issued and who failed to attend under R. 10 (1 ). He further observed that rule 12 itself provides both for cases where an attachment had been made and for cases where an attachment has not been already made, but is made in enforcement of the order of fine. The learned Judge further proceeded to observe thus: "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 proclamation against him is to put a great ana unnecessary limitation on the powers of Courts to deal with refractory witnesses. " Ramesam J. dealt with the other aspect of the matter to which I have already referred in the course of my discussion. The learned Judge was of opinion that 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 the court would have no power of dealing; but apart from such considerations, O. 16 R. 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 rule, it is difficult to construe O. 16 R. 12 as being confined to cases in which there has been an attachment. We find ourselves in respectful agreement with this decision of the learned Judges of the Madras High Court.

In Lahore there appear to be as many as three decisions reported in A. I. R. 1938 Lahore: one at page 473 Amir Chand v. Jowahar Singh ('3), another at page 469 Sundar Singh v. Emperor (4), and a third at page 979 Banwari Lal v. Emperor (5 ). The judgment of the learned single Judge at page 473 supports the contention of Mr. Bhandari but the other two decisions run counter to his submission. The case reported at page 469 clearly held that where the court had issued no proclamation and made no attachment of property, still the order imposing a fine under O. 16, R. 12 was within jurisdiction. The other decision at page 979 by Chief Justice Shadilal, though it does not directly decide the point, appears to favour the view taken by the Madras High Court in In re Peta Narasayya (2 ). The learned Chief Justice observed that: "as at present advised, I am of opinion that the attachment of the property was not a condition precedent to the infliction of the fine under R. 12, but it is unnecessary to make a final pronouncement on the subject because the merits of the case do not warrant the order passed by the Subordinate Judge. " The case of Hirdey Narain Vs. Emperor (6) which is a judgment of the Allahabad High Court is in support of Mr. Bhandari's contention but a later Division Bench of the same High Court in Ramdeo Prasad Vs. State (7) has taken a contrary view and is more inclined to the view taken by the Madras High Court to which we have referred earlier. It was observed in this case, that the exercise of the jurisdiction which has been conferred upon a Court under sec 32 and" O. 16, R. 12 to impose a fine upon a witness who fails to appear on the day for which he is summoned is not dependent upon the issuing of a proclamation or an order of attachment or a warrant under R. 10 (2) and (3), and that the words "such person" in R. 12 do not necessarily mean one to whom process has been issued under R. 10 (2) and (3 ). The learned Judges held that the words "such person" could very well refer to a person who had failed to appear as mentioned in sub-rule (1) of R. 10.

The net result is that we uphold the order of the learned Senior Civil Judge and dismiss the appeal with costs. At the same time we express our strong disapproval of the conduct of Dr. O. C. Mathur in flouting the process of the court and in not even offering a suitable apology for his refractory conduct which would have enabled the court below to take a lenient view of the matter. .


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.