ORDER XVI – Civil Procedure Code 1908

Civil Procedure Code 1908

 

 

ORDER XVI. SUMMONING AND ATTENDANCE OF WITNESSES

 

ORDER XVI. SUMMONING AND ATTENDANCE OF WITNESSES

 

1[1. List of witnesses and summons to witnesses

(1) On or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such person for their attendance in Court.

 

(2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned.

 

(3) The Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (1), if such part shows sufficient cause for the omission to mention the name of such witness in the said list.

 

(4) Subject to the provisions of sub-rule (2), summonses referred to in this rule may be obtained by the parties on an application to the Court or to such officer as may be appointed by the 2[Court in this behalf within five days of presenting the list of witnesses under sub-rule (1)].]

 

1. Subs, by Act No. 104 of 1976 for rule 1 (w.e.f. 1-2-1977).

 

2. Subs, by Act No. 46 of 1999, section 25 (w.e.f. 1-7-2002) for certain words.

 

1[1A. Production of witnesses without summons

A subject to the provisions of sub-rule (3) of rule 1, and party to the suit may, without applying for summons under rule 1, bring any witness to give evidence or to produce documents.]

 

HIGH COURT AMENDMENTS

 

Bombay.-

In Order XVI, after rule IB, insert the following rule, namely:-

“(1B) Court may permit service of summons by party applying for summons.-

 

(1) The Court may, on the application of any party for a summons for the attendance of any person, permit the service of summons to be effected by such party.

 

(2) When the Court has directed service of the summons by the party applying for the same and such service is not effected, the Court may, if it is satisfied that reasonable diligence has been used by such party to effect such service, permit service to be effected by an officer of the Court.” (w.e.f. 1-11-1966)

 

Gujarat.-

Same as Bombay without the marginal note (w.e.f. 17-8-1961).

 

1. Subs, by Act No. 104 of 1976, for rule 1A (w.e.f. 1-2-1977).

 

2. Expenses of witnesses to be paid into Court on applying for summons—

 

(1) The party applying for a summons shall, before the summons is granted and within a period to be fixed 1[which shall not be later than seven days from the date of making application under sub-rule (4) of rule 1], 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.

 

(2) Experts—In determining the amount payable under this rule, the Court may, in the case of any person summoned to give evidence as an expert, allow reasonable remunerati
on for the time occupied both in giving evidence and in performing any work of an expert character necessary for the case.

 

(3) Scale of expenses—Where the Court is subordinate to High Court, regard shall be had, in fixing the scale of such expenses to a any rules made in that behalf.

 

2[(4)] Expenses to be directly paid to witnesses—Where the summons is served directly by the party on a witness, the expenses referred to in sub-rule (1) shall be paid to the witness by the party or his agent.]

 

1. Certain words added by Act No. 46 of 1999, section 25 (w.e.f. 1-7-2002).

 

2. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

 

STATE AMENDMENTS

 

Uttar Pradesh.—

In its application to the State of Uttar Pradesh:

 

(i) In rule 2, sub-rule (1), insert, at the end, the following proviso,

“Provided, where Government is the party applying for a summons to a Government servant, it shall not be necessary for it to make any such payment into Court.”

 

(ii) After sub-rule (4) insert the following, namely:—

“(4-A) Allowances, etc., of Government servant witnesses to be taxed as costs.—

 

Any travelling and daily allowances and the salary, payable to a Government servant who attends the Court to give evidence or to produce a document shall, on the amount being certified by such witness, be taxable as costs.

 

Explanation 1.—The travelling and daily allowances shall be in accordance with the rules governing such allowances, applicable to the Government servant in question.

 

Explanation 2—The daily allowance and salary of the Government servant shall be proportionate to the number of days of his attendance required by the Court.” [U.P. Act 57 of 1976].

 

HIGH COURT AMENDMENTS

 

Andaman and Nicobar Islands, Assam, Calcutta and Nagaland.-

In Order XVI, in rule 2, for sub-rules (1) and (2), substitute the following sub-rules, namely:-

 

“(1) The Court shall fix in respect of each summons such a sum of money as appears to the Court to be sufficient to defray the travelling and other expenses of the persons summoned, in passing to and from the Court in which he is required to attend, and for one day’s attendance.

 

(2) In fixing such an amount the Court may, in the case of any person summoned to give evidence as an expert, allow reasonable remuneration for the time occupied both in giving evidence and in performing any work of an expert character necessary for the case.”

 

Bombay.-

In Order XVI, in rule 2, in sub-rule (1), insert the following proviso, namely:-

“Provided that where Government or a public officer being a party to a suit or proceeding as such public officer supported by Government in the litigation, applies for a summons to any public officer to whom the Civil Service Regulations apply to give evidence of facts which have come to his knowledge or of matters with which he has to deal as a public officer, or to produce any document from public records, the Government or the aforesaid officer shall not be required to pay any sum of money on account of the travelling and other expenses of such witness.” (w.e.f. 1-10-1983).

 

Chandigarh, Delhi, Himachal Pradesh, Haryana and Punjab.-

In Order XVI, in rule 2, in sub-rule (1), insert the following as an Exception, namely:-

 

“Exception.-When applying for a summons for any of its own officer
s, Government will be exempt from the operation of clause {!).” (w.e.f. 1-11-1966)

 

Gauhati.-

Same as in Bombay.

 

Gujarat.-

Same as in Bombay.

 

Madhya Pradesh.-

In Order XVI, in rule 2, in sub-rule (1), insert the following as an Exception, namely:-

 

“Exception.-When applying for a summons for any of its own officers, Government and State Railway Administrations will be exempt from the operation of sub-rule (1).” (w.e.f. 16-9-1960) Orissa.-Same as that of Patna.

 

Patna.-

In Order XVI, in rule 2, to sub-rule (1), insert the following proviso, namely:-

“Provided that the Government shall not be required to pay any expenses into Court under this rule when it is the party applying for the summons, and the person to be summoned is an officer serving under Government, who is summoned to give evidence of facts which have come to his knowledge, or of matters with which he has to deal, in his public capacity.” (w.e.f. 13-2-1952)

 

3. Tender of expenses to witness

The sum so paid into Court shall be tendered to the person summoned, at the time of serving the summons, if it can be served personally.

 

HIGH COURT AMENDMENTS

 

Andhra Pradesh.-

Same as in Madras.

 

Bombay.-

In Order XVI,-

 

(i) in rule 3, insert the following proviso, namely:-

“Provided that where the witness is a public officer to whom the Civil Service Regulations apply and is summoned to give evidence of facts which have come to his notice or of facts with which he has had to deal in his official capacity, or to produce a document from public records, the sum payable by the party obtaining the summons on account of his travelling and other expenses shall not be tendered to him. Such officer, shall, however, be required to produce a certificate duly signed by the Head of his office showing the rates of travelling and other allowances admissible to him as for a journey on tour.” (w.e.f. 1-10-1983)

 

(ii) after rule 3, insert the following rule, namely:-

“3A. Special provision for public servants summoned as witnesses in suits in which the Government is not a party.-

 

(1) Notwithstanding anything contained in the foregoing rules, in all suits or other proceedings to which the Government is not a party, where a servant of the Central Government or a Railway employee is summoned to give evidence and/or to produce documents in his official capacity, the Court shall direct the party applying for summons to deposit such sum of money as will, in the opinion of the Court be sufficient to defray the travelling and other expenses of the officer concerned as for a journey on tour, and on the deposit of such sum, the Court shall direct the summons to be issued and, out of the sum so deposited or out of any further sum which the Court may subsequently direct the party applying for summons to deposit, the Court shall on the appearance before the court of the officer summoned, pay him the amount of travelling and other expenses admissible to him as for a journey on tour under the rules applicable to his service.

 

(2) The officer appearing before the Court in accordance with sub-rule (1) shall produce a certificate duly signed by the Head of his office, showing the rates of travelling and other allowances admissible to him as for a journey on tour, and the amount payable to him by the Court shall be computed on the basis of the rates specified in such certificate.” (w.e.f. 15-7
-1954)

 

Calcutta.-

In Order XVI, for rule 3, substitute the following rule, namely:-

“3. The sum so fixed shall be tendered to the person summoned, at the time of serving the summons, if it can be served personally:

Provided-

 

(i) that where the person summoned is a servant of any State Government whose pay exceeds Rs. 10 per mensem or whose headquarters are situated more than five miles from the Court, and he has been summoned to appear as a witness in his official capacity in a civil case to which Government is a party, the sum so fixed shall be credited to the Treasury;

 

(ii) that where the person summoned is a Finger Print Expert of the Criminal Investigation Department and he is summoned to give evidence in private cases, the sum so fixed, other than his travelling allowance, shall be credited to the Treasury;

 

(iii) that where the person summoned is the Government Examiner of Questioned Documents or his Assistant and he is summoned to give evidence or his opinion is sought in private cases, the sum so fixed shall be credited to the Treasury;

 

(iv) that where the person summoned is a servant of the Central Government or a State Railway or any other Commercial Department of Government and he is summoned to give evidence in his public capacity in a civil case, whether Government is or is not a party, the sum so fixed shall be credited in the Treasury to the Government or the State Railway, as the case may be, to which the employee belongs; and

 

(v) that where the person summoned is a State Railway employee and he is summoned to give evidence in his private capacity in a Civil Court in Assam, the sum so fixed shall be credited to the Railway to which he belongs.”

 

[Vide Notification No. 10428-G, dated 25th July, 1928 and Notification No. 1501-G, dated 8th March, 1948.]

 

Delhi.-

Same as in Punjab.

 

Gauhati.-

Same as in Calcutta.

 

Gujarat-

Same as in Bombay omitting the last sentence of the proviso.

 

Himachal Pradesh.-

Same as in Punjab.

 

Kerala.-

In Order XVI, in rule 3, insert the following as para 2, namely:-

“In the case of employees of the Central Government or the State Government or Railway Administration sums paid into Court as subsistence allowance or compensation shall be credited in the Treasury to the credit of the Central Government or the State Government or the Railway Administration as the case may be.”

 

Madhya Pradesh.-

In Order XVI, for rule 3, substitute the following rule, namely:-

“3. (1) The sum so paid into Court shall except in case of a Government servant, or a State Railway employees, be tendered to the person summoned, at the time of serving the summons, if it can be served personally.

 

(2) Where a party other than Government in a suit requests the Court to summon a Government servant or a Railway employee as a witness or to produce official documents, the party shall deposit with the Court a sum, which in the opinion of the Court, will be sufficient to defray the travelling and other allowances of the Government servant or the Railway employee, as the case may be, as for a journey on tour and out of the sum so deposited the Court shall pay to the Government servant or the Railway employee concerned, the amount of travelling and other allowances admissible to him as for a journey on tour.” (w.e.f. 16-9-1960)

 

Madras.-

In Order XVI, in rule 3, insert the following as a separate paragraph, namely:-

 

“In the case of employees of the Central Government or a State Railway, sums paid into Court as subsistence allowance or compensation shall be credited in the Treasury to the credit of the Central Government or State Railway as the case may be.”

 

[Vide P Dis No. 11 of 1942.]

 

Orissa.-

Same as in Patna except for the word and figures “Rs. 10” substitute the word and figures “Rs. 200”. (w.e.f. 14-5-1984)

 

Patna.-

In Order XVI, in rule 3, insert the following proviso, namely:-

“Provided that when the person summoned is an officer of Government, who has been summoned to give evidence in a case to which Government is a parry, of facts which have come to his knowledge, or of matters which he has had to deal, in his -“public capacity, then-

 

(i) if the officer’s salary does not exceed Rs. 10 a month, the Court shall at the time of the service of the summons make payment to him of his expenses as determined by rule 2 and recover the amount from the Treasury,

 

(ii) if the officer’s salary exceeds Rs. 10 a month, and the Court is situated not more than 5 miles from his headquarters, the Court may, at its discretion, on his appearance, pay him actual travelling expenses incurred;

 

(iii) if the officer’s salary exceeds Rs. 10 a month and the Court is situated more than 5 miles from his headquarters no payment shall be made to him by the Court. In such cases any expenses paid into Court under rule 2 shall be credited to Government.”

 

Punjab.-

In Order XVI, for rule 3, substitute the following rule, namely:-

“3. Tenders of expenses to witnesses.-

 

(1) The sum paid into a Court shall, except in the case of a Government servant, be tendered to the person summoned at the time of serving the summons if it can be served personally,

 

(2) When the person summoned is a Government servant, the sum so paid into Court shall be credited to Government.

 

Exception (1).- In cases in which Government servants have to give evidence at a Court situate not more than five miles from their headquarters, actual travelling expense incurred by them may, when the Court considers it necessary, be paid to them.

 

Exception (2).-A Government servant, whose salary does not exceed Rs. 10 per mensem, may receive his expenses from the Court.”

 

[Vide Notification No. 156-G, dated 9th January, 1919.]

 

Rajasthan.-

In Order XVI, for rule 3, substitute the following rule, namely:-

“3. The sum so paid into Court and if so required by the person summoned shall be tendered to him at the time of serving the summons if it can be served personally.” (w.e.f. 24-7-1954)

 

4. Procedure where insufficient sum paid in

(1) Where it appears to the Court or to such officer as it appoints in this behalf that the sum paid into Court is not sufficient to cover such expenses or reasonable remuneration, 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 movable 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.

 

(2) Expenses
of witnesses detained more than one day—Where it is necessary to detain the person summoned for a longer period than one day, the Court may, from time to time, order the party at whose 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 movable property of such party; or the Court may discharge the person summoned without requiring him to give evidence, or may other order such levy and discharge such person as aforesaid.

 

STATE AMENDMENTS

 

Uttar Pradesh.—In its application to the State of Uttar Pradesh, in Order XVI, rule 4, add the following proviso:—

 

“Provided that nothing in this rule shall apply to a case where the witness is a Government servant summoned at the instance of Government as a party. [U.P. Act., 57 of 1976].

 

HIGH COURT AMENDMENTS

 

Andhra Pradesh.

Same as in Madras.

 

Calcutta.-

In Order XVI, in rule 4, for sub-rule (1), substitute the following sub-rule, namely:-

 

“(1) Where it appears to the Court or to such officer as it appoints in this behalf that the sum so fixed is not sufficient to cover such expenses or reasonable remuneration the Court may direct such further sum to be paid to the person summoned as appears to be necessary on that account and in the case of default in payment may order such sum to be levied by attachment and sale of the movable 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 the person as aforesaid.” (w.e.f. 25-7-1928)

 

Delhi.

Same as in Punjab.

 

Gauhati.-

Same as in Calcutta.

 

Himachal Pradesh.-

Same as in Punjab.

 

Karnataka-

In Order XVI,-

 

(i) after rule 4, insert the following rule, namely:-

“4A. (1) In the cases provided for in this rule the provisions of the foregoing rules shall not apply or shall apply only subject to the provisions of this rule.

 

(2) Where a Government or a public officer being a party to a suit or proceeding as such public officer supported by Government in the litigation, applies for a summons to any Government servant whose salary exceeds Rs. 10 per month and whose attendance is required in a Court situate more than 5 miles from his headquarters, no payment in accordance with rule 2 or with rule 4 shall be required, and the expenses incurred by the Government on such public officer in respect of the attendance of such witness shall not be taken into consideration in determining the costs incidental to the suit or proceeding.

 

(3) Where any other party to such a suit as is referred to in sub-rule (2) applies for a summons to such Government servant as is mentioned in the said sub-rule, the party summoning shall deposit in Court along with his application a sum of money for the travelling and other expenses of the officer determined by the Court under the provisions of rule 2 of this Order and shall also pay and deposit any further sum that may be required by Court to be paid or deposited under rule 4 of this Order, and the money so deposited or paid shall be credited to the Government in the treasury. Where the witness summoned under this sub-rule is the employee of the Central Government or the State Rai
lway or other Commercial Department of the Government to whom the provisions of the Payment of Wages Act apply, sums paid into Court shall be credited in the Treasury to the credit of the Central Government, the Railway or the Commercial Department as the case may be.

 

(4) In all cases where a Government servant appears in accordance with the foregoing sub-rules the Court shall grant him a certificate of attendance containing the prescribed particulars.”

 

(ii) after rule 4, insert rule 4B which is same as in Madras with the following modifications, namely:-

 

In sub-rule (1),-

 

(i) for the words “Notwithstanding anything in the foregoing rules, in all suits or other proceedings to which the Government is not a party, where a servant of the Central Government or a railway employee is summoned to give evidence and/ or to produce documents in his public capacity” substitute the words “Notwithstanding anything contained in the foregoing rules and in this rule, in all suits or other proceedings to which Government is not a party, where a servant of the Central Government or of any Railway or of any other Commercial Department of the Government to whom the provisions of the Payment of Wages Act apply is summoned to give evidence of facts which have come to his knowledge or of matters with which he has to deal as a public officer or to produce any document for public capacity.”

 

(ii) for the words “such sum” substitute the words “the said sum” and for the words “officer summoned” substitute the words “officer concerned”.

 

(iii) at the end, insert the words “The said officer shall be required to produce certificate duly signed by the Head of his office showing the rules of travelling and other allowances admissible to him as for a journey on tour and the amount payable to him by the Court shall be computed on the basis of the rates specified in the certificate.” {w.e.f. 30-34967)

 

Kerala.-

In Order XVI, after rule 4, insert rules 4A and 4B which are same as in Madras with the following modifications:-

(1) in rule 4A,-

 

(a) in sub-rule (1), omit the words “whose salary exceeds Rs. 10 per mensem and”;

 

(b) in sub-rule (2), omit the words “along with this application”; and for the words “any further sum” substitute the words “any other sum”;

 

(c) in sub-rule (3), for the words “a State Railway” and “State Railway” substitute “the Railway Administration”;

 

(2) in Rule 4B, after the words “where a servant of the Central Government” insert the words “or a State Government”, {w.e.f. 9-6-1959)

 

 

Madhya Pradesh.-

In Order XVI, in rule 4, in sub-rule (1), between the words “summoned” and “as appears” insert the following words, namely:-

 

“or, when such person is a Government servant or a State Railway employee to be paid into Court.”

 

[Vide Notification No. 3409, dated 29th June, 1934.]

 

Madras.-

In Order XVI, after rule 4, insert the following rules, namely:-

“4A. Special provision for public servants summoned as witnesses in suits to which the Government is a party.-

 

(1) Notwithstanding anything contained in the foregoing rules, in any suit by or against the Government, no payment in accordance with rule 2 or rule 4 shall be required when an application on behalf of Government is made for summons to a Government servant whose salary exceeds Rs. 10 per mensem and whose attendance is required in a Court situated more than five miles from his headquarters;
and the expenses incurred by Government in respect of the attendance of the witness shall not be taken into consideration in determining costs incidental to the suit.

 

(2) When any other party to such a suit applies for a summons to such an officer, he shall deposit in Court along with his application a sum of money for the travelling and other expenses of the officer according to the scale prescribed by the Government under whom the officer is serving and shall also pay any further sum that may be required under rule 4 according to the same scale, and the money so deposited or paid shall be credited to Government.

 

(3) In the case of employees of the Central Government or of [a State Railway], sums paid into Court as subsistence allowance or compensation shall be credited in the Treasury to the credit of the Central Government or State Railway as the case may be.

 

(4) In all cases where a Government servant appears in accordance with this rule, the Court shall grant him a certificate of attendance.”

 

[Vide Ft St Geo Gaz, Supplt to Part II, dated 10th March, 1942.]

 

“4B. Special provision for public servants summoned as witnesses in suits in which the Government is not a party.-

 

(1) Notwithstanding anything contained in the foregoing rules, in all suits or other proceedings to which the Government is not a party, where a servant of the Central Government or a Railway employee is summoned to give evidence and/or to produce documents in his public capacity, the Court shall direct the party applying for summons to deposit such sum of money as will in the opinion of the Court, be sufficient to defray the travelling and other expenses of the officer concerned as for a journey on tour, and on the deposit of such sum, the Court shall direct the summons to be issued and, out of the sum so deposited or out of any further sum which the Court may subsequently direct the party applying for the summons to deposit, the Court shall, on the appearance before Court of the officer summoned or as soon thereafter as is practicable, pay him the amount of travelling and other expenses admissible to him as for a journey on tour under the rules applicable to his service.

 

(2) The officer appearing before court in accordance with sub-rule (1) shall produce a certificate duly signed by the head of his office, showing the rates of travelling and other allowances admissible to him as for a journey on tour and the amount payable to him by the Court shall be computed on the basis of the rates specified in such certificate.”

 

[Vide P Dis No. 851/52, dated 28th November, 1952.]

 

Punjab.-

In Order XVI, in rule 4, in sub-rule (1), between the words “summoned” and “as appears” insert the following words, namely:-

 

“or, when such person is a Government servant, to be paid into Court.”

 

[Vide Notification No. 156-G, dated 9th January, 1919.]

 

5. Time, place and purpose of attendance to be specified in summons—

Every summons for the attendance of a person to give evidence or to produce a document shall specify the time and place at which he is 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.

 

6. Summons to produce document

Any person may be summoned to produce a document, without being summoned to give evidence, and any person summoned merely to produce a document shall be deemed to have complied with the summons if he ca
uses such document to be produced instead of attending personally to produce the same.

 

7. Power to require persons present in Court to give evidence or produce document

 

Any person present in Court may be required by the Court to give evidence or to produce any document then and there in his possession or power.

 

HIGH COURT AMENDMENTS

 

Calcutta.-

In Order XVI, after rule 7, insert the following rule, namely:-

“7A. (i) Except where it appears to the court that a summons under this order should be served by the Court in the same manner as a summons to a defendant the Court shall make over for service all summons under this Order to the party applying therefor. The service shall be effected by or on behalf of such party by delivering or tendering to the witness in person a copy thereof signed by the Judge or such officer as he appoints in this behalf and sealed with the seal of the Court.

 

(ii) Rules 16 and 18 of Order V shall apply to summons personally served under this rule, as though the person effecting service were a serving officer.

 

(iii) If such summons, when tendered, is refused or if the person served refuses to sign an acknowledgement of service or if for any reason such summons cannot be served personally, the Court shall, on the application of party, re-issue such summons to be served by the Court in like manner as a summons to a defendant” (w.e.f. 25-7-1928)

 

Gauhati.-

Same as in Calcutta.

 

Orissa.-

Same as in Calcutta, (w.e.f. 29-12-1961)

1[7A. Summons given to party for service

 

(1) The Court may, on the application of any party for the issue of a summons for the attendance of any person, permit such party to effect service of such summons on such person and shall, in such a case, deliver the summons to such party for service.

 

(2) The service of such summons shall be effected by or on behalf of such party by delivering or tendering to the witness personally a copy thereof signed by the Judge or such officer of the Court as he may appoint in this behalf and sealed with the seal of the Court.

 

(3) The provisions of rules 16 and 18 of Order V shall apply to a summons personally served under this rule as if the person effecting service were a serving officer.

 

(4) If such summons, when tendered, is refused or if the person served refuses to sign and acknowledgement of service or for any reason such summons cannot be served personally, the Court shall, on the application of the party, re-issue such summons to be served by the Court in the same manner as a summons to a defendant.

 

(5) Where a summons is served by a party under this rule, the party shall not be required to pay the fees otherwise chargeable for the service of summons.]

 

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

 

8. Summons how served

Every summons1[under this Order, not being a summons delivered to a party for service under rule 7A,] shall be served as nearly as may be in the same manner as a summons to a defendant and the rules in Order V as to proof of service shall apply in the case of all summonses served under this rule.

HIGH COURT AMENDMENTS

 

Andhra Pradesh.-

In Order XVI, for rule 8, substitute the following rule, namely:-

“8. A summons under this Order may be delivered by the Court to the party applying for such summons for making ser
vice on the witness, provided that when the service is not effected by the party or the party is unwilling to do so the summons shall be delivered through the proper officer of the Court. The rules in Order V as to proof of service shall apply in the case of all summons served under this rule.”

 

Calcutta.-

Same as in Gauhati.

 

Gauhati.-

In Order XVI, for rule 8, substitute the following rule, namely:-

 

“8. (1) Every summons under this Order not being a summons made over to a party for service under rule 7A (1) of this Order shall be served as nearly as may be in the same manner as a summons to a defendant and the rule in Order V as to proof of service shall apply thereto.

 

(2) The party applying for a summons to be served under this rule shall before the summons is granted and within a period to be fixed pay into Court the sum fixed by the Court under rule 2 of this Order.

 

Exception.-When applying for a summons for any of its own officers in his official capacity, Government will be exempt from the operation of this rule.”

 

Kerala.-

In Order XVI, for rule 8, substitute following rule, namely:-

“8. (1) A summons under this Order may be delivered by this Court to the party applying for such summons for making service on the witness:

 

Provided that when the party so desires in the first instance or is unable after due diligence to effect such service, the summons shall be delivered through the proper officer of the Court,

 

(2) Service of summons on a witness by the parry or by the proper officer shall, as nearly as may be, in the same manner as on a defendant and the rules in Order V as to proof of service shall apply in the case of all summons served under this rule.” (w.e.f. 9-6-1959)

 

Madras.-

Same as in Andhra Pradesh. (w.e.f. 1-11-1951)

 

Orissa.-

Same as in Gauhati except that omit sub-rule (1) and renumber sub-rule (2) as rules (w.e.f. 29-12-1961)

 

Patna.-

In Order XVI, in rule 8, insert the following proviso, namely:-

“Provided that a summons under this Order may by leave of the Court served by the party or his agent applying for the same by personal service. If such service is not effected and the Court is satisfied that reasonable diligence has been used by the party or his agent to effect such service then the summons shall be served by the Court in the usual manner.”

 

Rajasthan.-

In Order XVI, in rule 8, insert the following proviso, namely:-

“Provided that any party may by leave of the Court, by himself or through his agent, serve any of his witness or witnesses personally.” (w.e.f. 24-7-1954)

 

1. Subs, by Act No. 104 of 1976, for certain words (w.e.f. 1-2-1977).

 

9. Time for serving summons

Service shall in all cases be made a sufficient 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.

 

10. Procedure whose witness fails to comply with summons

 

1[(1) Where a person to whom a summons has been issued either to attend to give evidence or to produce a document, fails to attend or to produce the document in compliance with such summons, the Court—

 

(a) shall, if the certificate of the se
rving officer has not been verified by affidavit, or if service of the summons has been effected by a party or his agent, or

 

(b) may, if the certificate of the serving officer has been so verified, examine on oath the serving officer or the party or his agent, as the case may be, who has effected service, or cause him to be so examined by any Court, touching the service or non-service of the summons.]

 

(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 conspicuous part of the house in which he ordinarily resides.

 

(3) In view 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 be imposed under rule 12 :

 

Provided that no Court of Small Causes shall make an order for the attachment of immovable property.

 

HIGH COURT AMENDMENTS

 

Allahabad.-

In Order XVI, in rule 10,-

(i) in sub-rule (1), substitute a colon (:) for the full stop (.) after the words “summons”, and insert the following proviso, namely:-

 

“Provided that the Court need not examine the serving-officer if the person has been summoned only to produce a document and has attended and admitted receipt of the summons but has failed to produce the documents.” (ii) in sub-rule (2),-

 

(a) between the word “proclamation” and the word “requiring” insert the following words, namely:-

“or, if he is present, an order in writing to be signed by him”;

 

(b) for the words “and a copy of such proclamation” substitute the following words, namely:-

“and a copy of the proclamation if issued”;

 

(iii) in sub-rule (3) between the word “proclamation” and the words “or at any time afterwards” insert the following words, namely:-

“or an order in writing”.

 

[Vide Notification No. 6745/35{a)-l(8), dated 11th September, 1938.]

 

Kerala.-

In Order XVI, in rule 10, for the proviso, substitute the following proviso, namely:-

 

“Provided that no Court exercising Small Cause jurisdiction shall make an order for the attachment of immovable property.” (w.e.f. 9-6-1959)

 

1. Subs, by Act No. 104 of 1976, for sub-rule (1) (w.e.f. 1-2-1977).

 

11. If witness appears attachment may be withdrawn

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 proceeding 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.

 

12. Procedure if witness fails to appear

1[(1)] 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 the attached and sold or, if already attached under rule 10, to be sold for the purpose of satisfying all costs to 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.

 

2[(2) Notwithstanding that the Court has not issued a proclamation under sub-rule (2) of rule 10, nor issued a warrant nor ordered attachment under sub-rule (3) of that rule, the Court may impose fine under sub-rule (1) of this rule after giving notice to such person to show cause why the fine should not be imposed.]

 

1. Rule 12 renumbered as sub-rule (1) of that rule by Act No. 104 of 1976 (w.e.f. 1-2-1977).

 

2. Ins by Act No. 104 of 1976 (w.e.f. 1-2-1977).

 

13. Mode of attachment

The provisions with regard to the attachment and sale of property in the execution of a decree shall, so far as they are applicable, be deemed to apply to any attachment and sale under this Order as if the person whose property is so attached were a judgment-debtor.

 

14. Court may of its own accord summon as witnesses strangers to suit.

Subject to the provisions of this Code as to attendance and appearance and to any law for the time being in force, where the Court at any time thinks it necessary 1[to examine any person, including a party to the suit] and not called as 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.

 

1. Subs, by Act No. 104 of 1976 for certain words (w.e.f. 1-2-1977).

 

15. Duty of persons summoned to give evidence or produce document—

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

 

16. When they may depart

(1) A person so summoned and attending shall, unless the Court otherwise directs, attend at each hearing until the suit has been disposed of.

 

(2) On the application of either party and the payment through the Court of all necessary expenses (if any), the Court may require any person so summoned and attending to furnish security to attend at the next or any other hearing or until the suit is disposed of and, in default of his furnishing such security, may order him to be detained in the civil prison.

 

HIGH COURT AMENDMENTS

 

Delhi.-

Same as in Punjab.

 

Himachal Pradesh.-

Same as in Punjab.

 

Punjab.-

In Order XVI, in rule 16, after sub-rule (2), insert the following sub-rule, namely:-

 

“(3) In the absence of the presiding officer the powers conferred by sub-rule (2) may be exercised by the Senior Sub
ordinate Judge of the first class exercising jurisdiction at the headquarters of the district, or by any Judge or Court-official nominated by him for the purpose:

 

Provided that a Court-official nominated for the purpose, shall not order a person, who fails to furnish such security as may be required under sub-rule (2), to be detained in prison, but shall refer the case immediately to the Presiding Officer on his return.”

 

[Vide Notification No. 209-R/XI-Y-11, dated 25th July, 1938 and Notification No. 24-R/XI-Y-11, dated 23rd January, 1940.]

 

17. Application of rules 10 to 13

The provisions of rules 10 to 13 shall, so far as they are applicable, be deemed to apply to any person who having attended in compliance with a summons departs, without lawful excuse, in contravention of rule 16.

 

18. Procedure where witness apprehended cannot give evidence or produce document

 

Where any person arrested under a warrant is brought before the Court in custody and 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, on such bail or security being given, may release him, and, in default of his giving such bail or security, any order him to be detained in the civil prison.

 

19. No witness to be ordered to attend in person unless resident within certain limits

 

No one shall be ordered to attend in person to give evidence unless he resides—

 

(a) within the local limits of the Court’s ordinary original jurisdiction, or

(b) without such limits but at a place less than 1[one hundred] or (where there is railway or steamer communication .or other established public conveyance foi five-sixths of the distance between the place where he resides and the place were the Court is situate) less than 2[five hundred kilometers] distance from the Court house:

 

3[Provided that where transport by air is available between the two places mentioned in this rule and the witness is paid the fare by air, he may be ordered to attend in person.]

 

HIGH COURT AMENDMENTS

 

Allahabad.-

In Order XVI, in rule 19, in clause (b), between the words “public conveyance” and “for five sixths” insert the following words, namely:-

“or private conveyances run for hire”.

 

[Vide Notification No. 24/VII-d-154, dated 4th April, 1959.]

 

Punjab.-

In Order XVI, in rule 19, in clause (b), insert the following proviso, namely:-

“Provided that any Court in the State of Punjab may require the personal attendance of any witness residing in the Punjab or Delhi State.”

[Vide Notification No. 60-Genl-XI-Y-8, dated 4th March, 1955.]

 

1. Subs, by Act No. 104 of 1976 for “fifty” (w.e.f. 1-2-1977).

 

2. Subs, by Act No. 104 of 1976 for “two hundred miles” (w.e.f. 1-2-1977).

 

3. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

 

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

 

Where 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 possession or power, the Court may pronounce judgment against him or make such order in relation to the su
it as it thinks fit.

 

21. Rules as to witnesses to apply to parties summoned

Where any party to a suit is required to give evidence or to produce a document, the provisions as to witnesses shall apply to him so for as they are applicable.

 

HIGH COURT AMENDMENTS

 

Allahabad.-

In Order XVI, after rule 21, insert the following rules, namely:-

“22. (1) Save as provided in this rule and in rule 2, the Court shall allow witnesses reasonable actual travelling expenses. Other expenses to be allowed to them shall be on the following scale, namely:-

 

(a) in the case of witnesses of the class of cultivators, labourers and persons, including Government servants of corresponding rank-rupee one per day.

 

(b) in the case of witnesses of a better class, such as bhumidars and sirdars, traders, pleaders and persons including Government servants, of corresponding rank-rupee one and fifty naya paise to rupee three per day.

(c) in the case of witnesses of a superior rank, including Government servants-

 

from rupees three and fifty naya paise to rupees six per day:

Provided that where a Government servant is summoned to produce official documents or to give evidence of facts which came to his knowledge in the discharge of his public duties, he shall be paid travelling and other expenses at the rate admissible to him as for journeys on tour in accordance with the travelling allowance rules applicable to him.

 

[Vide Notification No. 2110/VII-d-57, dated 14th March, 1953.)

 

(2) If a witness demands any sum in excess of what has been paid to him, such sum shall be allowed if he satisfies the Court that he has actually and necessarily incurred the additional expense.

 

Illustration.-A post office or railway employee summoned to give evidence is entitled to demand from the party, on whose behalf or at whose instance he is summoned, the travelling and other expenses allowed to witnesss of the class or rank to which he belongs and in addition the sum for which he is liable as payment to the substitute officiating during his absence from duty. The sum so payable in respect of the substitute will be certified by the official superior of the witness on a slip, which the witness will present to the Court from which the summons issued.

 

(3) If a witness be detained for a longer period man one day the expenses of his detention shall be allowed at such rate, not usually exceeding that payable under clause (1) of this rule, as may seem to the Court to be reasonable and proper:

 

Provided that the Court may, for reasons stated in writing, allow expenses on a higher scale than that hereinbefore prescribed.

 

[Vide Notification No. 1953/35, dated 22nd May, 1915.]

 

23. In cases of which Government is a party, Government servants whose salary exceeds Rs. 10 per mensem and all police constables, whatever their salary may be, who are summoned to give evidence in their official capacity at a Court situate than five miles from their headquarters, shall be given a certificate of attendance by the Court in lieu of travelling and other expenses.”

 

[Vide Notification No. 359/35(a)1(1), dated 7th February, 1920.]

 

Andhra Pradesh.-

Same as in Madras.

 

Calcutta.-

In Order XVI, for rule 21, substitute the following rule, namely:-

“21. (1) When any party to a suit is required by any other thereto to give evidence, or to produce a document, the provis
ions as to witnesses shall apply to him so far as applicable.

 

(2) When any party to a suit gives evidence on his own behalf, the Court may in its discretion permit him to include as costs in the suit a sum of equal to the amount payable for travelling and other expenses to the other witnesses in the case of similar standing.”

 

Assam and Nagaland.-

Same as in Calcutta.

 

[Vide Notification No. 15264-G, dated 11th November, 1927.]

 

Karnataka.-

Same as in Madras, (w.e.f. 30-3-1967)

 

Kerala.-

Same as in Madras.

 

[Vide Notification No. B-l-3312/58, dated 7th April, 1959.]

 

Madras.-

Same as in Calcutta with the addition of marginal note “Rules in the case of parties appearing as witnesses.”

 

[Vide GOMs No, 402 Law (Genl.), dated 4th February, 1936; P Dis No. 98 of 1936.]

 

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