This section does not authorize the simple dismissal of a suit but requires a judgment upon the record. H. C. Rulings, 23rd November 1865.

By way of illustration: Suppose A. sues B. for payment of Rs. 1,000 due under the terms of an agreement, and of Rs. 500 due under the terms of another agreement; and both agreements are vexatiously denied, and issues are framed accordingly; and at the further hearing A. has in attendance witnesses to prove the former agreement, and satisfactorily proves the same; and then informs the court that the witnesses to prove the latter agreement are not in attendance, and asks for time. In such case, if there has been default, the court may proceed to the decision of the suit on the record notwithstanding the default, and notwithstanding the application for time, and in due course give judgment for the plaintiff for Rs. 1,000, and for the defendant in respect of the other cause of action. But if in such case no witnesses were in attendance, and default appeared to have been made, judgment might forthwith be given for the defendant in respect of both causes of action.

It will be observed that under this amended section the court may, not shall, proceed to decide the suit forthwith, notwithstanding the default. And to warrant proceeding to a decision under this section, there must be actual default of the kind contemplated: it would be both unjust and irregular to refuse time to a party who has done everything in his power to cause the attendance of his witnesses, but has been prevented from causing the same by circumstances wholly beyond his control. Thus: In Latchmana Rau Saib v. Ragunatha Rau and another, 6 H. C. R., 299, the court of first instance refused on insufficient grounds to grant an order under (old) Sec. 162 for the 2nd defendants attendance as a witness, and at the hearing dismissed the suit for default under this section. Held, that no default had been made, and the suit must be remanded to be fully heard and determined upon any evidence produced.

CHAPTER XIV.

OF THE SUMMONING AND ATTENDANCE OF WITNESSES.

159. The parties may, after the summons has been delivered for service on the defendant, whether it be for the settlement of Summons to attend issues only, or for the final disposal of the suit, to give evidence or obtain, on application to the Court or to such officer produce documents. as it appoints in this behalf, before the day fixed for such settlement or disposal, as the case may be, summonses to persons whose attendance is required either to give evidence or to produce documents.

It has been ruled that: A party is entitled at any stage of the case before hearing to apply for a summons to witnesses, without reference to the number of such applications which he may have previously made, and it is the duty of the court to comply with such application, if any time be left before the hearing of the cause. Anurup Chandra Mukhopadhya and others v. Hiramani Dasi and another, 5 M. J., 21; Gora Chand Ghose v. Raj Kumar, 5 Suth. W. R., 111. And: So long as the hearing merely stands adjourned, and so long as the party who wishes to summon witnesses has not closed his case, the court is bound to summon them, unless it appears that the application is made so late that the witnesses cannot be reasonably expected to attend in time to be examined before that partys case closes. Indro Chandur Baboo v. Hamilton Grant Dunlop, 9 W. R., 530.

only

On the other hand summonses for witnesses can be obtained

After the summons has been delivered.-And not before. It is important to bear this in mind, inasmuch as this is the only section in the Code that enables parties to apply for summonses to witnesses.

Act VIII of 1859 confers no authority upon a judge to issue summonses to witnesses to attend on the settlement of issues. Anund Chandur Banerjee v. Woomes Chandur Roy, 1 Ind. Jur., O. S., 15; 1 Hyd. Rep., 147.

Obtain, on application.-Generally the party will obtain the summons as of course: but cases may arise in which the court will feel great difficulty in disposing of the application. Take for example the case of Subharaya Mudali, 4 H. C. R., 81, in which the accused person vexatiously demanded that several high officials,

and scores of ministerial servants, vakils, clerks, peons and others, should be summoned to show the existence of animus against him. on the part of the Magistrate. If a case of the kind were to occur in a civil court, what ought to be done? Indeed, what should be done if a party to a suit, out of pure malice and wantonness, were to apply for summonses to the Governor, the Members of Council, the Judges of the High Court, and all others entrusted with authority in this land? Unquestionably, it seems to me, the courts must be held to have a certain discretion under this section, and to be empowered, if they think fit, to refuse to summon a witness whose evidence is not shown to be likely to be material.

The late Sudder Court ruled at least on two occasions, namely, in their Proceedings of the 1st March, 1827, and of the 9th October, 1835, that persons of rank are not to be summoned, unless their evidence is material, and when their evidence is indispensable, they are to be treated with the respect and consideration due to their position in life.

In Ramasami Ayyan v. Ramu Mupan, 3 H. C. R., 372, it was held that the defendant in an action for damages for a false charge was entitled to the evidence of the Magistrate who had held the preliminary enquiry into the charge; though on grounds of public policy the English rule that judges of courts of record ought not to be compelled to give evidence of matters which have come to their knowledge judicially, may be considered a sound rule in regard to the judges of some courts in the Mofussil.

In their Proceedings, 27th November, 1871, 6 H. C. R., Ap. xliii, the High Court held that a District Munsiff ought not to be called on to depose as to matters which came before him judicially in the course of a trial which he was conducting as Munsiff, and on grounds of public policy he is entitled to exemption; though not by law exempted from giving evidence as being a judicial officer. A distinction was drawn between this case and the case last cited above; and Regina v. Gazard, 8 C. & P., 595, was relied on as an authority. Or to produce documents.-Or both. See Sec. 163.

Under the English practice a clause commanding the production of documents is usually incorporated into the 'subpæna ad testi

ficandum' writ, and it is generally advisable so to do, not only that the party may be examined if needful, but to save the expense of a sub. ad test. for other parties. See an instance where a sub. du. tec. and ad test. required all to testify, and commanded two out of the four, that they or one of them should produce, &c. Amry v. Long, 9 East, 473. It is settled, however,that the two branches of such a writ are perfectly distinct, and that a party producing a document under it, though by virtue of the latter clause he may be compelled to be sworn, cannot require that he shall be, nor, unless the party who calls him chooses to have him sworn and thus to make him a witness, can the opponent claim to ask him any questions. Lushs Prac., 527. 160. The party applying for a summons shall before the summons is granted and within a period to be fixed by the Court, pay into Court such a sum of money as appears to the Court to be sufficient to defray the travelling and other expenses of the person summoned, in passing to and from the Court in which he is required to attend, and for one day's attendance.

Expenses of witnesses to be paid into court on applying for

summons.

If the Court be subordinate to a High Court, regard shall be had, in fixScale of expenses. ing the scale of such expenses, to the rules (if any) laid down by competent authority.

In England the attendance of a witness in civil cases is compelled (where the witness is not in custody) by means of a subpoena, which is a judicial writ, commanding the witness to appear at the trial to testify for the plaintiff or defendant, under pain of forfeiting £100 in case of disobedience. It is however requisite, in civil cases, to tender to the witness his reasonable expenses, not only of going to attend the trial, but also of his return; for though he may refuse to be sworn till such expenses be paid, the party may not choose to call him, and he may find it difficult to get home again. See Starkies Evidence, p. 103.

The Witnesses Act, 1854, provides for the compelling the attendance of witnesses out of the jurisdiction, and forbids the courts to proceed against or punish any person who has made default by not appearing, "unless it shall be made to appear to such court that a reasonable and sufficient sum of money to defray the expenses of coming and attending to give evidence, and of returning from giving such evidence, had been tendered to such person at the time when such writ of subpoena or process was served upon such person."

To render the service of the summons on the witness effective for any purpose, it is necessary that a sum of money be actually tendered a reasonable time before attendance is required, sufficient to cover the reasonable expenses of going to, staying at and returning from the place of trial; or if brought by the party and kept by him at the place, at any rate of returning. If the attendance of the witness becomes unnecessary, and he is informed of it before expenses have been incurred, the sum may be recovered back. These expenses are to be estimated according to the rank in life of the party, and the circumstances of his health, &c., at the time. Lushs Prac., 525.

It is to be feared that, in the Madras Province at all events, sufficient attention has not been directed in the Mofussil to these most proper requirements of the law, and that in practice ridiculously small sums are paid into court and tendered to witnesses of position and respectability, to defray their expenses. Instances have occurred, to my own knowledge, of a few annas being tendered to witnesses of good social position such as a leading civil court pleader, summoned to attend a court twenty or thirty miles from their place of residence. In the High Court the allowances to witnesses are sufficiently liberal, and why similar rates should not be paid in the Mofussil, it is difficult to understand.

Travelling and other expenses.-Ordinarily the witness should be allowed a sum sufficient to defray the expense of travelling in the manner in which he ordinarily travels. For example, a barrister or other professional man should be allowed first-class fare if he can travel by rail or by steamer, or the cost of a palanquin journey if he must travel by palanquin, and so forth. But cases may occur in which it will be necessary to tender to the witness a sum sufficient to defray the expense of travelling more luxuriously than he usually travels. For example, where the wife of an inn-keeper in the country residing sixty miles from the place of trial accepted without objection a sum which was sufficient to pay the outside coach fare, but not the inside, and did not attend, and it appeared that she had an infant at the breast, in delicate health, the court refused an attachment against her, but without costs, as she did not require a