or may both order such levy and discharge such person as aforesaid1. and pur pose of at 163. Every summons for the attendance of a person to Time, place give evidence or produce a document shall specify the time and place at which he is required to attend, and also whether tendance to be specihis attendance is required for the purpose of giving evidence fied in or to produce a document, or for both purposes; and any summons. particular document which the person summoned is called on to produce shall be described in the summons with reasonable accuracy 2. 164. Any person may be summoned to produce a document, Summons without being summoned to give evidence; and any person document. to produce summoned merely to produce a document shall be deemed to have complied with the summons, if he cause such document to be produced instead of attending personally to produce the same. 165. Any person present in court may be required by the Power to Court to give evidence or to produce any document then and require there in his actual possession or power. persons in Court to give evi how served. 166. Every summons to a person to give evidence or dence. produce a document shall be served as nearly as may be in Summons manner herein before prescribed for the service of summons on the defendant; and the rules contained in Chapter VI as to proof of service shall apply in the case of all summonses served under this section. summons. 167. The service shall in all cases be made a sufficient Time for serving time before the time specified in the summons for the attendance of the person summoned, to allow him a reasonable time for preparation and for travelling to the place at which his attendance is required *. 168. If the serving-officer certify to the Court that the Attachment of summons for the attendance of a person, either to give property of evidence or to produce a document, cannot be served, the absconding 1 As to appeals from orders under this section for attachment and sale, see infra, sec. 588, cl. (13). 2 Suth. 1864, Civ. R. 164. 36 Suth. Civ. R. 126. This is in favour of the witness and for enforcing diligence on the witness. Withdrawal of attachment. Procedure fails to appear. Court shall examine the serving-officer on oath touching the non-service: and upon being satisfied that such evidence or production is material, and that the person for whose attendance the summons has been issued is absconding or keeping out of the way for the purpose of avoiding the service of the summons', may issue a proclamation requiring him to attend to give evidence, or produce the document, at a time and place to be named therein; and a copy of such proclamation shall be affixed on the outer door of the house in which he ordinarily resides. If he does not attend at the time and place named in such proclamation, the Court may in its discretion2, at the instance of the party on whose application the summons was issued, make an order for the attachment of the property of the person whose attendance is required, to such amount as the Court thinks fit, not exceeding the amount of the costs of attachment and of the fine which may be imposed under section 170: Provided that no Court of Small Causes shall make an order for the attachment of immoveable property. 169. If, on the attachment of his property, such person appears and satisfies the Court that he did not abscond or keep out of the way to avoid service of the summons, and that he had not notice of the proclamation in time to attend at the time and place named therein, the Court shall direct that the property be released from attachment, and shall make such order as to the costs of the attachment as it thinks fit. 170. If such person does not appear, or, appearing, fails if witness to satisfy the Court that he did not abscond or keep out of the way to avoid service of the summons, and that he had not notice of the proclamation in time to attend at the time and place mentioned therein, the Court may impose upon him such fine not exceeding five hundred rupees as the Court thinks fit, having regard to his condition in life and all the circumstances of the case, and may order the property attached, 16 Suth. Civ. R. 235: I ibid. 26. 3 A revival of the repealed Act XIX of 1853, sec. 28. or any part thereof, to be sold for the purpose of satisfying all costs incurred in consequence of such attachment, together with the amount of the said fine, if any 1: Provided that, if the person whose attendance is required pays into court the costs and fine as aforesaid, the Court shall order the property to be released from attachment. of its own accord witnesses to suit. 171. Subject to the rules of this Code as to attendance Court may and appearance and to the provisions of the Indian Evidence Act, 1872, if the Court at any time thinks it necessary to summon as examine any person other than a party to the suit and not strangers named as a witness by a party to the suit, the Court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession, on a day to be appointed, and may examine him as a witness or require him to produce such document. summoned evidence 172. Subject as last aforesaid, whoever is summoned to Duty of appear and give evidence in a suit must attend at the time persons and place named in the summons for that purpose, and whoever to give is summoned to produce a document must either attend to or produce produce it, or cause it to be produced, at such time and place. document. 173. No person so summoned and attending shall depart When they unless and until (a) he has been examined or has produced the part. document and the Court has risen, or (b) he has obtained the Court's leave to depart 2. may de 174. If any person on whom a summons to give evidence Conseor produce a document has been served fails to comply with failure to the summons, or if any person so summoned and attending comply departs in contravention of section 173, the Court may order mons. him to be arrested and brought before the Court: Provided that no such order shall be made when the Court has reason to believe that the person so failing had a lawful excuse for such failure. When any person so brought before the Court fails to satisfy it that he had a lawful excuse for not complying with the summons, the Court may sentence him to fine not exceeding five hundred rupees. 1 A suit will not lie to set aside a sale under sec. 170, but the claimant may sue the purchaser to establish his right to the property sold. 2 As to the former law, see 5 Mad. H. C. 132. with sum Procedure when witness appre Explanation.-Non-payment or non-tender of a sum sufficient to defray the expenses mentioned in section 160 shall be deemed a lawful excuse within the meaning of this section 1. If any person so apprehended and brought before the Court cannot, owing to the absence of the parties or any of them, hended give the evidence or produce the document which he has been cannot give evidence or summoned to give or produce, the Court may require him to produce give reasonable bail or other security for his appearance at such time and place as it thinks fit, and on such bail or security being given, may release him. documents. Procedure when witness absconds. Persons bound to attend in person. 175. If any person so failing to comply with a summons absconds or keeps out of the way, so that he cannot be apprehended and brought before the Court, the provisions of sections 168, 169 and 170 shall, mutatis mutandis, apply. 176. No one shall be bound to attend in person to give evidence or to be examined in Court unless he resides (a) within the local limits of its ordinary original jurisdiction, or () without such limits and at a place less than fifty or (where there is railway-communication for five-sixths of the distance between the place where he resides and the place where the Court is situate) two hundred miles distance from the court-house. Refusal of 177. If any party to a suit present in Court refuses, party to without lawful excuse 2, when required by the Court, to give give evidence when evidence or to produce any document then and there in his actual possession or power, the Court may in its discretion either pass a decree against him, or make such order in relation to the suit as the Court thinks fit 3. called on by Court. 1 So probably would the fact that the summons required the witness to attend on Sunday or any other recognised holiday. See 8 Ben. Appx. 12, a case on the Code of Criminal Procedure. i. e. such an excuse as would in law justify the refusal to give evidence, I N. W. P. 242. 3 3 Mad. H. C. 299: 4 Mad. H. C. 142. This section is extended (by Act V of 1881, sec. 83) to probateproceedings before the District Judge. The discretion conferred by it must be exercised with more than usual care, and a caveator's refusal to answer a question does not justify the Judge in dispensing with proof of the will set up and passing a decree in the petitioner's favour, 9 Bom. 241. witnesses 178. Whenever any party to a suit is required to give Rules as to evidence or to produce a document, the rules as to witnesses apply contained in this Code shall apply to him so far as they are to parties applicable. CHAPTER XV. OF THE HEARING OF THE SUIT AND EXAMINATION OF summoned. WITNESSES. and production of by party having right to begin. 179. On the day fixed for the hearing of the suit, or on Statement any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce evidence his evidence in support of the issues which he is bound to prove1. Explanation. The plaintiff has the right to begin unless Rules as to where the defendant admits the facts alleged by the plaintiff 2 right to begin. and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin. 180. The other party shall then state his case and produce Statement his evidence (if any)3. and pro duction of evidence by other party. party be ginning. The party beginning is then entitled to reply. Where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, Reply by at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party. In the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case. 1 The Code does not expressly say that the party beginning shall be allowed at the close of his case, if his opponent does not announce any intention to adduce evidence, to address the Court a second time for the purpose of summing up the evidence. See I Mad. H. C. 377. i. e. all the material allegations in the plaint, 7 C. L. R. 274, cited by 3 That the Court cannot refuse to |