P L D 1960 (W (PLP)

"(2) where the Court sees reason to believe that such evidence or production is material, and that such person has, without lawful excuse, failed to attend or to produce the document in compliance with such summons or has intentionally avoided, service, it may issue a proclamation requiring him to attend to give evidence or to 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 or other conspicious part of the house in which he ordinarily resides. "(3) In lieu of or at the time of issuing such proclamation, or at any time afterwards, the Court may, in its discretion, issue a warrant, either with or without bail, for the arrest of such person, and may make an order for the attachment of his property to such amount as it thinks fit, not exceeding the amount of the costs of attachment and of any fine which may re imposed under rule 12: Provided that no Court of Small Causes shall make an order for the attachment of immovable property." Order XVI, rule 11 is in the following terms :‑

"Where, at any time after the attachment of his property, such person appears and satisfies the Court,‑ (a) that he did not, without lawful excuse, fail to comply with the summons or intentionally avoid service, and, (b) where he has failed to attend at the time and place named in a proclamation issued under the last preceding rule, that he had no notice of such proclamation in time to attend, 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." Order XVI, rule 12, runs as follows:‑-- "The Court may, where such person does not appear, or appears but fails so to satisfy the Court impose upon him such fine not exceeding five hundred rupees as it thinks fit, having regard to his condition in life and all the circumstances of the case, and may order his property, or any part thereof, to be attached and sold or, if already attached under rule 10, to be sold for the purpose of satisfying all costs 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 aforesaid, the Court shall order the property to be released from attachment."

5. The combined effect of the foregoing provisions is too obvious to need any detailed analysis. Rule 10 prescribes the procedure which is to be followed where a witness fails to comply with a summons. It will be seen that before action is taken under this rule, the Court must be satisfied, firstly, that the witness had been duly served ; secondly, that the evidence or production of the document is material ; and thirdly, that the witness has, without lawful excuse, failed to attend or to produce the document in compliance with the summons or has intentionally avoided service. If the Court is so satisfied, then the Court may: (1) issue a proclamation requiring the witness to attend to give evidence or to produce the document at a time and place to be named therein, and (2) at the time of issuing such proclamation or at any time afterwards, issue a warrant, either with or without bail; for the arrest of such person and may also make an order for the attach ment of his property, or (3) in lieu of issuing a proclamation issue a warrant and may also make an order of attachment of the property. Order XVI, rule 11, provides for a case where after the attach ment of the property the person appears and satisfies the Court that be had not intentionally failed to comply with the summons, and where he had also failed to attend at the time and place named in a proclamation issued under rule 10 (2), that he had no notice of such proclamation, then the Court shall direct that the property be released from attachment. In rule 12, "such person" obviously refers to the person against whom action has been taken by the Court under clause (2) or (3) of rule

10. This rule does not depend for its application on rule

11. It is an independent provision A which comes into operation after the fulfillment of the conditions laid down in clauses (2) and (3) of rule 10.

6. A Division Bench of the Madras High Court, however, held in the case of In re Peta Narasayya (A I R 1925 Mad. 1247) that for the exercise of jurisdiction under Order XVI, rule 12, the issue of a proclamation or an order for attachment of property under rule 10 was not a necessary condition. This ruling was followed by Dalip Singh, J. In Sundar Singh v. Emperor (A I R 1928 Lah. 469) who observed that though the Court had issued no proclamation and made no attachment of property, still the order imposing a fine under Order XVI, rule 12, was within jurisdiction. The Madras ruling was also referred to by Shadi Lal, C. J. in Banwari Lal v. Emperor (A I R J928 Lah. 979) and it was held that the attachment of the property was not a condition precedent to the infliction of the fine under rule

12. The learned Chief Justice, however, added that it was unnecessary to make a final pronouncement on the subject because the merits of that case did not warrant the order passed by the Subordinate Judge. The Madras ruling was, however, dissented from by Harrison, J. in Amir Chand v. Jowahar Singh Harbhajan Singh and another. A Division Bench of the Allahabad High Court reviewed the case law on the subject in B. Hirdev Narain, Mukhtar v. Emperor (A I R 1929 All. 850) and did not agree either with the decisions of the Calcutta High Court or with the decision of the Madras High Court. They did not refer to any of the decisions of the Lahore High Court. They held that, "An order under rule 12 can be passed only :‑ (1) If a proclamation has been issued under clause (2), rule. 10, or; (2) If no proclamation has been issued, either a warrant has been issued for the arrest of the witness or an order for attachment of his property has been passed or ; (3) If a proclamation as well as a warrant has been issued or an order for attachment of the property of the witness has been passed." They further observed that "if neither of these conditions are satisfied the Court has no jurisdiction to impose fine under rule 12."

7. Unfortunately no decision of any of the High Courts of Pakistan is available after the year 1929 for guidance in the matter. However, on an examination of the relevant provisions of law, I venture to say, with the greatest respect to the learned Judges of the Calcutta, Madras, Allahabad and Lahore High Courts, that the law has not been correctly ‑ laid down in the above‑mentioned rulings. In my opinion where a witness summoned to attend to give evidence or produce a document fails to attend or to produce the document without any lawful excuse, even then the Court has no jurisdiction to impose a fine on the witness under rule 12, unless the Court takes further steps in accordance with clauses (1), B (2) and (3) of rule

10. If the Court is satisfied that the person summoned had been duly served and had intentionally failed to attend or to produce the document in compliance with such summons, without any lawful excuse, and that his evidence or the document is material, then the Court has the discretion to issue a proclamation or warrant as provided for in clauses (2) and (3) of rule

10. When such person fails to appear or appears, but fails to satisfy the Court that he had a lawful excuse for not complying with the summons, then and then alone the Court is empowered to impose a fine on such person under rule

12. I am constrained to say that the Madras view and the view expressed by Dalip Singh, J. are not warranted by the provisions of law. I am aware that section 32, Civil Procedure Code, empowers the Court to compel the attendance of a witness by issuing a warrant of his arrest or by attaching and selling his property or by imposing a fine upon him C or by ordering him to furnish security for his appearance, but I have no doubt that the mode in which the power is to be exercised is prescribed in Order XVI, rule 10, Civil Procedure Code. The Calcutta view that fine can be imposed under rule 12 only if the property of the witness has been attached, is also not founded on the correct interpretation of the rules. For compelling the attendance of the witness who has failed to attend, rule 10 does not lay down that the property of the witness must be attached under all circumstances. In fact there are only two methods which are provided for the enforcement of the attendance of the witness, namely, (1) that the Court may issue a proclamation requiring him to attend to give evidence or to produce a document at the time and place named therein or (2) the Court may in lieu thereof or in addition to it issue a warrant, with or without bail, for the arrest of such person and may also make an order for the attachment of his property to such an amount as it deems fit to cover the costs of the attachment and any fine which may be imposed for his failure to attend, not exceeding Rs. 500 as pro vided under rule 12. 1t is, therefore, clear to me that it is absolutely at the discretion of the Court to order the attachment of the property in addition to the issuing of a proclamation or the issuing of a warrant for the arrest of such person. Rule 11 simply provides a remedy for getting the property released if it has been attached.

8. The interpretation put by Harrison, J., that the witness cannot be fined unless and until there has been proclamation which he has disobeyed, is, if I may say, so with respect, not warranted by the rules. So far as the Allababad view is concerned, I am in substantial agreement with the view expressed therein, except in one respect. I am of the opinion that an order for the attachment of the property of "such person" cannot be passed independently of the issuing of a warrant. Having regard to the provisions of clause (3) of rule 10, 1 am of the view that before an order of attachment can be passed under this clause, it is necessary that a warrant for arrest must have been issued. The learned Judges of the Allahabad High Court, however, have held that an order under rule 12 can also be passed if an order for attachment of the property of a witness has been passed. As the rule stands, the word " or " is not to be found in clause (3) of rule

10. On the other hand, the word " and " is mentioned in this rule, which means that in addition to the issuing of a warrant, the Court may also make an order for the attachment of his property. I do not think that the Court can pass an order of attachment of the property of the witness while acting under clause (3) of rule 10 without issuing a warrant of his arrest.

9. On a careful consideration of the relevant rules, I am of the opinion that fine can be imposed on a witness under rule 12 only :‑ (1) if a proclamation has been issued under clause (2) rule 10 ; . or (2) if no proclamation has been issued, a warrant has been' issued for the arrest of the witness, or (3) if a proclamation as well as a warrant has been issued, and (4) the person concerned does not appear or appears but fails to satisfy the Court that he had a lawful excuse for not comply ing with the summons. In my opinion it is immaterial that an order for the attachment of the property of the witness has been passed or not.

10. Applying the above test to the facts of the present case, I find that although the learned Senior Civil Judge had passed the order that a warrant for the arrest of the witness and a warrant for the attachment of his property be issued, yet in fact neither the warrant of his arrest nor the warrant for the attachment of the property of the witness was ever issued. I am of the view that the mere passing of the order that a warrant for arrest be issued was not sufficient. To attract the provisions of rule 12 to " such person " the warrant of arrest must have been issued. Though the passing of the order for issuing the warrant of attachment of the property was sufficient within the terms of the rule, yet in the absence of the issuing of the warrant no fine could have been legally imposed under rule

12. As one of the essential conditions for the exercise of jurisdiction under rule 12 had not been fulfilled, therefore, the learned Senior Civil Judge had no jurisdiction to impose a fine on the appellant.

11. For the reasons stated above, I accept this appeal and quash the order imposing a fine of Rs. 500 upon the appellant. K. B. A./A. H. Appeal accepted,