property be released from attachment, and shall make such order as to the costs of the attachment, as it thinks fit.

Act VIII of 1859, section 160. This section applies to H. C. and P. S. C. C.

If such Person Appears.-This means that he has given himself up voluntarily. This section seems to contemplate that there will be a trial by the Court, and implies that evidence to prove the person had absconded as well as evidence in exculpation of his conduct should be heard in his presence, and a determination come to on the point whether he had absconded or striven to evade service-Bishonath Sircar, Petitioner, 3 W. R., Cr., 63. Where a Magistrate under a very similar section refused to release property and dispose of a case without allowing the party to shew cause, his decision was set asideJhundoo Singh and others, Petitioners, 5 W. R., Cr., 8; see also Mudhusudun Singh, Petitioner, 1 W. R., Cr., 27.

Procedure if witness fails to appear.

170. If such person does not appear, or, appearing, fails 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 named 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, 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:

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.

Act VIII of 1859, section 160. This section applies to H. C. and P. S. C. C. Fine when Imposed.-Before a Judge should proceed to fine a person under this section and order the sale of his property, he should be careful to see that all the formalities required by law, when issuing processes of proclamation and attachment, have been complied with, as any serious error of law in so doing might be sufficient to vitiate the order of sale. Looking at the decisions, on the Criminal Procedure Code, it seems probable that an order of fine and sale would be set aside if the Judge issued processes of proclamation and attachment without recording on what grounds he was satisfied that the evidence was material, and that the party had absconded or concealed himself in order to evade service-Bishonath Sircar, Petitioner, 3 W. R., Cr., 63; or if there was any doubt whether the proclamation was properly issued, and there was no evidence to shew that the party did not appear within the time fixed by the proclamation-Shewdyal Singh vs. Griban, 6 W. R., Cr., 73. A nazir's report is not legal evidence on which to base a convictionNilcant Bhattacharjee, Petitioner, W. R., Mis., 1864.

A witness is not bound to attend if the trial is fixed for a Sunday-Queen vs. Hargobind Dutta Sircar, 8 B. L. R., App., 12.

A suit will not lie to set aside a sale under this section-Bukhoree Sing vs. Government, 8 W. R., 207; but the claimant is not barred by the sale, and may bring an action against the purchaser to establish his right to the property-Queen vs. Chumroo Roy, 7 W. R., Cr., 35.

171. Subject to the rules of this Code as to attendance and appearance and to the provisions of the Indian Evidence Act, 1872, if the Court at any time thinks it necessary to examine any person other than a party to the suit

summon

as

Court may of its own accord witnesses strangers to suit.

and not 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.

Act XXIII of 1861, section 9. This section applies to H. C. and M. S. C. C.

Duty of persons summoned to give evidence or produce document.

172. Subject as last aforesaid, whoever is summoned to appear and give evidence in a suit must attend at the time and place named in the summons for that purpose, and whoever is summoned to produce a document must either attend to produce it, or cause it to be produced, at such time and place.

part.

Act VIII of 1859, section 167. This section applies to H. C. and P. S. C. C.

173. No person so summoned and attending shall When they may de- depart unless and until (a) he has been examined or has produced the document and the Court has risen, or (b) he has obtained the Court's leave to depart.

This section applies to H. C. and P. S. C. C.

This section gets rid of a difficulty felt in the case of Venkatappa vs. Papammah, 5 Mad., 132, in which it was held that when a case was adjourned for further hearing before the witnesses had been examined, the Court could not bind them down to attend again.

Consequences

of

failure to comply with

174. If any person on whom a summons to give evidence or produce a document has been served fails to comply with the summons, or if any person so summoned and attending departs in contravention of section 173, the Court may order him to be arrested and brought before the Court:

summons.

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 complynig with the summons, the Court may sentence him to fine not exceeding five hundred rupees.

sum

Explanation.-Non-payment or non-tender of a sufficient to defray the expenses mentioned in section 160 shall be deemed a lawful excuse within the meaning of this section.

Procedure when witness apprehended cannot give evidence or produce documents.

If any person so apprehended and brought before the Court cannot, owing to the absence of the parties or any of them, give the evidence or produce the document which he has been summoned to give or produce, the Court may require him to 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.

Act VIII of 1859, section 169. This section applies to H. C. and P. S. C. C. Scope of Section.-This section contemplates the case of a person who has been served and failing to attend has been arrested and brought before the Court; it does not apply to the case of a person who attends and says he has not the document required -In re Prem Chand, I. L. R., 12 Bom., 63; nor to the case of a person who has not been served.

Procedure. It is the duty of the parties to move the Court when witnesses do not appear-Bachman vs. Lall Beharee, 13 W. R., 324; and though the Court has a discretion, it should not allow witnesses to evade attendance-Saroda Dossee vs. Burda Kant Roy, 5 W. R., Act X, 49; Ozeer Mahomed vs. Bydnath, 5 W. R., Act X, 6; and if they are material, and there is no reason to believe that the applicant has aided in or connived at their absconding, or has otherwise placed himself in a position that it would be inequitable to grant his application, the application should be granted-Rajoo Singh vs. Lalla Balgobind, 1 W. R., 26; and it is not necessary to institute a formal investigation beforehand-Periyanna Chetty vs. Gobinda, 5 Mad., 104. The opinion of the Judge that the witnesses are not likely to benefit a party's case-Ozeer Mahomed vs. Bydnath, 5 W. R., Act X, 6, or his dislike to punish witnesses for non-attendance afford no valid reason for refusal-Nilmonee Banerjee vs. Shurbo, 6 W. R., 14. For the same reason, if the case falls clearly within the section, summonses should not be re-issued-Bissembhur Sircar vs. Soorodhuny, 3 W. R., 21.

The Court is bound to pass some order on an application under this section-Nilmoney Chowdhry vs. Hossein Ally, 5 W. R., 222.

infra.

Lawful Excuse.-See "Explanation," in this section, and not under section 177,

Procedure when wit

ness absconds.

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 section 168, 169 and 170 shall, mutatis mutandis, apply.

Act VIII of 159, section 169. This section applies to H. C. and P. S. C. C.

176. No one shall be bound to attend in person to give evidence or to be examined in Court unless he resides

Persons bound to attend in person.

(a) within the local limits of its ordinary original jurisdiction, or

(b) 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 situated two hundred miles distance from the Court-house.

This section applies to H. C. and P. S. C. C.

Consequence of refusal of party to give evidence when called on by Court.

177. If any party to a suit present in Court refuses, without lawful excuse, when required by the Court, to give 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.

Act VII of 1859, section 126. This section applies to H. C. and P. S. C. C. See note under section 178, infra.

The party must be present in Court; he must refuse without lawful excuse; and the document must then and there be in his actual possession or power. Even then the Court may exercise its discretion, and is not bound to give a decree against him; but a party who bonâ fide, and for a substantial reason, requires the evidence of another to be taken, ought not, under ordinary circumstances, have a decree given against him until that evidence has been given-Roy Dhunput vs. Prem Bibee, 24 W. R., 72. If a party when summoned as a witness refuses to produce accounts relevant and material (partnership accounts) Katakam vs. Bhupalam, 4 Mad., 142, or to answer a material question, and does not endeavour to purge his contempt—Jeshta Ramji vs. Awaker, 3 Mad., 299, the suit may be dismissed.

Lawful Excuse.-Lawful excuse will more or less depend on the circumstances of each case, and the decision in one case can scarcely be a guide to the decision in another, unless the facts of the case are given, so that the Court may see precisely on what materials the decision was come to-Doorga Dutt vs. Jheengoor Jan, 18 W. R., 63. This section generally refers to such an excuse as, under the Evidence Act, would justify a refusal to give evidence or produce the document required. Lekh Raj vs. Palee Run, 1 Alla., 241. See note under section 120, supra.

Probate. This section applies to probate cases, but it will not justify the Judge in dispensing with proof of the excution of a will-Ravji Ranchod vs. Vishnu, I. L. R., 9 Bom., 241.

178. Whenever any party to a suit is required to give evidence or to produce a document, the rules as to witnesses contained in this Code shall apply to him so far as they are applicable.

Rules as to witnesses to apply to parties summoned.

This section applies to H. C. and P. S. C. C.

Section 170 of Act VIII, 1859, has not been re-enacted; and save in the cases referred to in sections 177 and 120, a case cannot be decided against a party for merely disobeying an order to attend.

CHAPTER XV.

OF THE HEARING OF THE SUIT AND EXAMINATION

OF WITNESSES.

This Chapter applies to all persons required to give evidence or produce documents in any proceeding under this Code-section 615, infra.

179. On the day fixed for the hearing of the suit, or Statement and pro- on any other day to which the hearing duction of evidence by is adjourned, the party having the right to party having right to begin. begin shall state his case and produce his evidence in support of the issues which he is bound to prove.

Rules as to right to begin.

Explanation. The plaintiff has the right to begin unless where the defendant admits the facts alleged by the plaintiff 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.

Taylor on Evidence, sections 350, 353, 356. This section applies to H. C. and P. S. C. C.

Right to Begin. -There is no invariable rule that in a suit for mesne profits, the onus is on the defendants-Krishna Mohun vs. Kunjo Behari, 9 C. L. R., 1.

In a suit for partition of certain property and money-lending business, the defendant admitted a nucleus of joint property and claimed the rights to begin: Held, that unless the defendant admitted all the material allegation in the plaint, the plaintiffs were entitled to begin-Aghore Nauth vs. Prem Chund, 7 C. L. R., 274.

Where a claim was made under section 246, Act VIII, 1859, by a third party to some timber which had been attached by a prohibitory order under section 234, corresponding to section 278, post, the claimant was compelled to begin-Nga Tha Yah vs. Burn, 2 B. L. R. (F. B.), 91.

Where a preliminary issue is raised by the defendant which goes to the root of the case defendant begins-Fatmabai vs. Aishabai, I. L. R., 12 Bom., 454; p. 459; but if in appeal the respondent objects that no appeal lies, the appellant begins-Rustomji vs. Kessowji, I. L. R., 8 Bom., 287.

High Court.—The Common Law practice in respect of the right to begin has always been followed by the High Court-Rungamony Dossee vs. Brojo Lall Dey, Cory., 25; and where a party did not go into evidence, but had not intimated his intention not to do so, the other side was entitled to reply-Virasvami vs. Appasvami, 1 Mad., 377.

Onus of Proof.-The test is to determine which party will win if no evidence is given, or if no more evidence is given than is given at any particular stage of the case, and wherever a person asserts affirmatively as part of his case that a certain state of fact is present or is absent or that a particular thing is insufficient for a particular purpose, he is bound to prove it positively, and the rule is not relaxed even where the facts lie peculiarly within the knowledge of the opposite party-Abrath vs. Nor. Eastn. Ry. Co., 11 Q. B. D., 440; id., 11 App. Cas., 247; Hurryhur Mookhopadya vs. Nobokisto Mookerjee, 14 Moore, 152; Sartaj vs. Deoraj, 15 Ind. App., 51, p. 65; but no question of onus of proof arises where there is evidence from which an inference decisive of the case can be drawn by the persons entitled to find the facts-Speight vs. Ganut, 22 C. D., 727, p. 766; Owners of Vindomara" vs. Lamb, App. Cas. (1891), 1, p. 7. See in regard to transferability of an estate-Sartaj vs. Deoraj, 15 Ind. App., 51; to a right to retain possession of an intermediate tenure-The Secretary of State vs. Luchmeswar Singh, 16 Ind. App., 6; of a ryot's right-Mohima Chunder vs. Mohesh Chunder, 16 Ind. App., 23; Appa Rau vs. Subbanna, I. L. R., 13 Mad., 60; Faki Abdulla vs. Babaji, I. L. R., Bom., 458, p. 461; or to resume a lakheraj tenure-Koylashbashiny vs. Gocoolmoni, I. L. R., 8 Cal., 230; Bacharam vs. Peary Mohun, I. L. R., 9 Cal., 813; Narendra vs. Bishun Chundra, I. L. R., 12 Cal., 182.

How many Counsel Heard.--Plaintiffs must be represented by one pleader or set of pleaders and cannot be represented severally by different pleaders-Jankibai vs. Atmaram, 8 Bom., 241.

On Motion.-It is not the practice to hear more than one counsel or vakil in support of original motions or applications against which no cause has been shewn in the first instance-The Petition of Baroda Soondree Dossee, B. L. R., Sup. Vol., 609.

Statement and pro

180. The other party shall then state duction of evidence by his case and produce his evidence (if

other party.

Reply by party beginning.

any).

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, at