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that the stamp was insufficient and plaintiff would not make up the deficiency : Hed, the order was not passed under this section; but see section 54, ante-Muhammad vs. Muhammad, I. L. R., 11 Alla., 91. But where a defendant's pleader, who had obtained an adjournment to obtain certain documents, failed and was still in default when the case was called on, and a decree was given to plaintiff, the decision was considered to fall within this section and not section 157-Rangasawmy Mudeliar vs. Sirangan, 4 Mad., 254 ; and where the vakil of the plaintiff on the second hearing of the case applied for a summons against a witness, and on the case coming on, was, owing to the absence of his witness, unprepared to go on, and the case was dismissed, the case was considered to have been disposed of under this section-Comalammal vs. Rungasa umy, 4 Mad., 56.
Where the plaintiff cited one of the defendants as his witness, but his application for his examination was disallowed under Act VIII of 1859, and on the adjonrned day of hearing he failed to produce any other witness, it was held that, as the plaintiff had been prevented by insufficient grounds from examining the defendant as a witness, he had not committed default within the meaning of section 148, and that therefore the suit had not been properly heard and determined. The order was set aside, and the case was remanded-Latchmana vs. Ragunatha, 6 Mad., 299; and where in a suit, the isgues having been settled,
the hearing was adjourned to a fixed date for final disposal, and on that day, the plaintiff not appearing, the suit was dismissed under section 148, Act VIII of 1859: Held, that though the Court could have proceeded under section 147 of that Act (158 of this Code) to dismiss the suit, the order was bad, and the plaintiff had the right to petition under section 119 of that Act (section 103 of this Code)-Ryall vs. Sherman, I. L. R., 1 Mad., 287.
No New Suit -The effect of a decision under section 148, Act VIII of 1859, was to bar a second suit, even by a minor, unless on the ground of fraud-Venkatachalam vs. Mahalakshamma, I. L. R., 10 Mad., 272. See Shaik Saheb vs. Mahomed, I. L. R., 13 Mad., 510. And see note under section 157, supra.
New Evidence on Remand. - This section differs from section 148, Act VIII, 1859, inasmuch as under it the Court was bound to “decide the suit on the record.” The effect of these words was, that though the Appellate Court could remand a case for decision on the merits, the Lower Court could not admit any evidence after the remand, but was bound to decide it on the record as it stood when the case was remanded-Lochun Mundul vs. Wuzeer, 13 W. R., 464; Puddo Lochun vs. Sirdar Khan, 12 W. R., 23 ; 3 B. L. R. App., 91. The Court is not so bound under the present procedure. See "EFFECT OF ORDER," section 563, post.
vered or sent for service on the defendant, Summons to attend to give evidence or whether it be for the settlement of issues produce documents.
only, or for the final disposal of the suit, obtain, on application to the Court or to such officer 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.
See Act VIII of 1859, section 149. The words “or sent” have been added by Act VII of 1888, section 15. This section applies to P. S. C. C.
Summons to Attend.-Adjournment and summoning witnesses are distinct matters. Application to summon may be made at any stage of the case before hearingBai Kali vs. Alurakh, I. L. R., 15 Bom., 86 ; Pandurang vs. Keskarji, I. L. R., 6 Bom., 742; Krishna Churn vs. Protab Chunder, I. L. R., 7 Cal., 560. The Court is bound to issue suminonses when asked for as a matter of course-- Brojo Nath vs. Protap Chunder, 22 W. R., 296 ; Kaji Ahmad vs. Haji, I. L. R., 9 Bom., 308; unless, perhaps, they are gummoned in such numbers or in such a manner as indicates a vexatious desire of obstructing the course of justice--Ram Phul vs. Wahed Ali, 14 W. R., 66, or the application has been made at a time when it is absolutely impossible that the witness can be brought in time to be examined before the party calling them closes his case-Rajendro Narain vs. Kumud Narain, 3 C, L. R., 569 ; Indro Chunder vs. Dunlop, 9 W. R., 530 ; Abdool Ali vs. Mullick Sudderooddeen, 11 W. R., 493 ; but though summonses have been granted, if the witnesses do not appear at the trial, the Court will proceed, unless an application is made to adjourn-Nund Mohun vs. Goluck Nath, 11 W. R., 99, and even then the Court is not bound to grant an adjournment unless on good cause
shewnAbdool Kadir vs. Abin Mirdha, 24 W. R., 290 ; Bai Kali vs. Alarakh, I. L. R., 15 Bom., 86. See note under section 158, supra.
Practice.-Parties who have the benefit of legal advice ought to be left to manage their own cases without interference from the Court. Where the evidence of a witness or the production of a document is material to plaintiff's case, it is his business to move the Court to take the necessary steps in the matter-Nobin Chunder vs. Anungo Munjuree, 23 W. R., 83, and though in cases where the process of the Court is abused any person affected can bring the matter before the Court, a mere witness summoned to give evidence has no right to apply to the Court to discharge the order-In re Gold Company, 12 C.D., 82.
Revision.- Where the Court of first instance refused to issue summonses and decided the case on the other evidence, and this decision was upheld on appeal, the High Court in Bombay set the order aside on revision-Kaji Ahmad vs. Haji, I. L. R., 9 Bom., 308.
Forms of Summonses.-See schedule IV, Nos. 125-6, infra. 160. The party applying for a summons shall, before the
summons is granted and within a period to Expenses of wit. nesses to be paid into
be fixed by the Court, pay into Court such a Court on applying for sum of money as appears to the Court to be summons.
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. If the Court be subordinate to a High Court, regard shall
be had, in fixing the scale of such exScale of expenses.
penses, to the rules (if any) laid down by competent authority.
Act VIII of 1859, section 151. This section applies to P. S. C. C.
A party need not pay any sum into Court until the Court has fixed what is reasonable-Mohun Mundur vs. Brij Bhukun, 9 W. R., 128, and the sum fixed must have reference to the travelling expenses or other charges of a similar nature ;) and where a witness who had incurred no expense in travelling asked for compensation for loss of time, the application was refused- Nawab Nazim vs. Prosononarain, 2 Hyde, 236. It should be sufficient to cover the witnesses' expenses to and from the Court and for one day's attendance-Dubois de Suran vs. Hurrish Chunder, 5 W. R., Ref., 6. No separate action will lie for such expenses-Id.
161. The sum so paid into Court shall be tendered to the Tender of expenses
person summoned, at the time of servirg to witness.
the summons, if it can be served personally. Act VIII of 1859, section 151. This section applies to H. C. and P. S. C. C.
After the list of witnesses has been filed, and the cost of service, &c., deposited, the Court's officers, and not the party, are responsible for the service and return of processMussitee Khanum vs. Hookoom Bibee, 15 W. R., 88.
162. If it appear to the Court or to such officer as it Procedure where in-appoints in this behalf that the sum paid sufficient sum paid in. into Court is not sufficient to cover such expenses, the Court may direct such further sum to be paid to the person summoned as appears to be necessary on that account ; and, in case of default in payment, may order such sum to be levied by attachment and sale of the moveable property of the party obtaining the summons ; or the Court may discharge the person summoned without requiring him to give evidence ; or may both order such levy and discharge such person as aforesaid.
If it be necessary to detain the person summoned for a Expenses if witness longer period than one day, the Court may, detained more than one from time to time, order the party at whose day.
instance he was summoned to pay into Court such sum as is sufficient to defray the expenses of his detention for such further period, and in default of such deposit being made, may order such sum to be levied by attachment and sale of the moveable property of the party at whose instance he was summoned ; or the Court may discharge the person summoned without requiring him to give evidence ; or may both order such levy and discharge such person as aforesaid.
Act VIII of 1859, section 151. This section applies to H. C. and P. S. C. C.
If it does not appear from the record that expenses have been deposited, and a witness does not attend, because his travelling charges have not been tendered to him, the party to blame will suffer-Ishan Chunder vs. Onath Nath, 18 W. R., 16.
A witness is entitled to be paid his expenses by the party at whose instance he has been called, although he has not applied for them before giving his evidence-London, Bombay and Mediterranean Bank vs. Mahomed Ibrahim, I. L. R., 4 Bom., 619.
Appeal.—There is no appeal from an order under this section (section 588). See, as to the old law, Bijoy Kishen vs. Joy Kishen, 12 W. R., 430. 163. Every summons for the attendance of a person to
give evidence or produce a document shall Time, place, and purpose of attendance specify the time and place at which he is to be specified in sum
required to attend, and also whether his
attendance is required for the purpose of giving evidence or to produce a document, or for both purposes ; and any particular document which the person summoned is called on to produce shall be described in the summons with reasonable accuracy.
Act VIII of 1859, section 152. This section applies to H. C. and P. S. C. C.
A written summons distinctly describing the nature of the document required must be issued on a party required to produce it'; a verbal order to his pleader is not such a summons as is contemplated by law, and is not sufficient-Doorgamonee Dossee vs. Binodemones Dossee, W. R., 1864, p. 164.
Forms of Summonses.-See schedule IV, Nos. 125-6, infra.
164. Any person may be summoned to produce a docuSummons to produce ment, without being summoned to give document.
evidence; and any person 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.
Act VIII of 1859, section 152. This section applies to H. C. and P. S. C. C.
A broker who has effected a policy and has a lien on it for his premium, may be compelled by the ass ured to produce it at the trial of an action against the underwriters -Hanley vs. Leathl ey, 10 B. & C., 858. 165. Any person present in Court may be required by
the Court to give evidence or to produce Power to require persons present in Court to any document then and there in his actual give evidence.
possession or power. This section is new. It applies to H. C. and P. S. C. C.
166. Every summons to a person to give evidence or Summons how produce a document shall be served as neared.
Īy may be in manner hereinbefore 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.
Act VIII of 1859, sections 151–7. This section applies to H. C. and P. S. C. C. See Prem Chand Roy vs. Bacharam Mookerjee, 6 W. R., 126.
167. The service shall in all cases be made a sufficient Time for serving sum
time, before the time specified in the sum
mons 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. Act VIII of 1859, section 154. This section applies to H. C. and P. S. C. C. 168. If the serving officer certify to the Court that the
summons for the attendance of a person, Attachment of property of absconding either to give evidence or to produce a docu
ment, cannot be served, the Court shall, if the certificate of the serving-officer has not been verified by affidavit, and may, if it has been so verified, examine the serving-officer on oath, or cause him to be so examined by another Court, 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 discretion, 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.
Act VIII of 1859, section 159. This section applies to H. C. and P. S. C. C. The words "shall ... by another Court” in the first paragraph have been inserted by Act VII of 1888, section 16.
Proof of Non-Service. If the serving-officer returns that the summons cannot be served, the Court is bound to examine him on oath, touching the non-service, unless it is verified by affidavit.
Proclamation, When to Issue-It is the duty of the party requiring a proclamation to move the Court-Nund Mohun vs. Golucknath, 11 W. R., 99. Before it can issue, the Judge must be satisfied, and the grounds of his satisfaction should be recorded-Ozeer Wahomed vs. Bydnath, 5 W. R., Act X, 6 (although possibly that is not absolutely necessary-compare Sidhessuree Debia vs. Denobhundhoo, 6 W. R., 65), that the evidence of the witness is material, and that he is keeping out of the way of the summons- Kalee Dass vs. Eshan Chunder, 13 W. R., 416, or absconding-Ajoodya Doss vs. Misrun, 15 W. R., 176. Both these conditions must be fulfilled-Bhoobun Moyee ys. Kishorée, 6 W. R., 235 ; and where they exist, the Judge should not refuse an application, unless it appears that the applicant is not entitled to the assistance of the Court either by reason of having aided in or connived at the absconding of the witness, or of having otherwise placed himself in such a position that it would be inequitable to grant it-Rajoo Singh vs. Lalla Balgobind, 1 W. R., 26. See also Sheik Jafur vs. Goroo Pershad, 3 W. R., 97.
Material.- When the return was made on the day of trial, the party was considered entitled to some time to prove that the witness's evidence was material - Prem Chand Roy vs. Becharam, 6 W. R., 126.
Procedure after Proclamation.-On the expiry of the proclamation, it is the duty of the party to make an application for attachment if he wishes to exhaust all the means granted to enforce attendance, and if he goes to trial on the evidence he has obtained the case must be decided on it-Luchmun Singh vs. Chokowree, 25 W. R., 154. The Judge is not bound to act on the application ; he has a discretion, but the discretion must be exercised in a reasonable manner-Poran Chunder vs. Gopenath Singh, 8 W. R., 505 ; and if he refuses to issue a process of attachment he should record his reasons for refusing-Ozeer Mahomed vs. Bydnath, 5 W. R., Act X, 6, though apparently he is not bound to do so-compare Sidhessuree Debia vs. Denobhundhoo, 6 W. R., 65.
Claims to Property Attached.-A Judge has no power to order the attachment of any property unless it belongs to the persons whose attendance is necessary, and he should be most careful not to disturb the possession of a third party. At the same time the law does not make any provision for any investigation by a Judge into the claims of a third party to property which has been attached, and he commits no error in refusing to do so. The claimant is not barred by the sale, and may bring an action in the Civil CourtQueen vs. Chumroo Roy, 7 W. R., Cr., 35.
appears, may be
169. If, on the attachment of his property, such person If witness
appears and satisfies the Court that he did attachment
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