CHAPTER XII.

Lingering labours come to nought.

A SYNOPSIS to this chapter is hardly called for. It provides that a case may be decided at the first hearing, if it presents no issues, or if the issues it presents are such as can be satisfactorily decided without further argument or evidence than can at once be supplied, or lastly, in cases, where the summons has been for final hearing, either party fails, without sufficient cause, to produce his evidence. This last alternative, if the summons has only been fixed for settlement of issues, is subject to the condition that no objection be raised by the parties or their pleaders. Lastly, if there be several defendants and one of them is not at issue with plaintiff on any point of law or fact, the case, as far as he is concerned, may be decided at once.

When it is clear (C. P. C. O., I. 32,) that it will be necessary to call for further evidence from the parties, or when the defendant has been summoned for the settlement of issues only, the examination at the first hearing should be limited to obtaining from each party a clear statement of the facts on which he relies, and ascertaining from him the exact points on which he and his adversary are at issue.

The Cal. High Court prescribe 11 o'clock A. M. as the latest hour at which Judges of all classes should be on the Bench, exception being made in districts and at seasons in which it is usual to hold early sittings. (U. C. O. C. H. C. 94). See also n. (a) p. 69 for N.-W. P. hours, and p. 67 pref. for Madras.

It is a rule of all Courts that no one should be allowed to enter a Court-house wearing arms.

The Cen. Prov. J. C. (C. O., II. 5, 6) points out that Courts are not always careful to see that postponement is imperative (under the new Code "optional"-ED.) when it is clear that further evidence is required, unless they are satisfied that the plaintiff has, without sufficient cause, failed to produce his evidence. Sufficient cause should be construed liberally. Omission to summons witnesses through a Court is often considered as sufficient cause. On the contrary, such omission would imply prima facie that plaintiff had

good reason to suppose the witnesses would not be required, or that he could secure their attendance by other means. A proper finding in such case would not be based on the mere omission, but on the Court being able to declare, on specific grounds, that the above or like considerations adduced by plaintiff failed to carry the weight which usually attaches to them.

(a) This latter para. does not apply to the Mufassil Small Cause Courts.

*6, 68

CHAPTER XIII.

OF ADJOURNMENTS.

M. 156. (146) The Court may, if sufficient cause be shown, at any stage of the suit, grant time to the parties, or to any of them, and may from time to time

Court may grant time or adjourn hearing.

adjourn the hearing of the suit.

In all such cases the Court shall fix a day for the further hearing of the suit, and may make Costs of adjournment. such order as it thinks fit with respect to the costs occasioned by the adjournment. :

Provided that, when the hearing of evidence has once begun, the hearing of the suit (a) shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the hearing to be necessary for reasons to be recorded by the Judge with his own hand.

M. 157. (147) If,

Procedure if parties fail to appear on day fixed.

on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by chapter VII., or make such other order as it thinks fit.

Court may proceed notwithstanding either party fails to produce his evidence.

M. 158. (148) If any party to a suit to whom time has been granted fails to produce his evidence, (b) or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith.

Summons to attend to

documents.

*

CHAPTER XIV.

OF THE SUMMONING AND ATTENDANCE OF WITNESSES. M. 159. (149) The parties may, after the summons has been delivered for service on give evidence or produce the defendant, whether it be for the settlement of issues only, or for the final disposal of the suit, obtain, ont application (a) †s. 20, n. (). 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 produces documents.(b) M. 160. (151) The party applying for a summons shall, before the summons is granted and Expenses of witnesses to be paid into Court on applying within a period to be fixed by the Court, pay into Court such a sum the Court to be sufficient to defray

See p. 101. SAct I. 1872.

S .3.

for summons.

of money as appears to

CHAPTER XIII,

De die in diem.

HERE there is little to note. The sections are only three in number, and reproduce the old law, with one marked exception. The hearing of evidence in a case once begun, the hearing of the suit shall be continued from day to day until all the witnesses in attendance have been examined; the reasons for any departure from this are to be recorded by the Judge with his own hand.

The Calcutta High Court point out (U. C. O. p. 5) that the day of trial once announced must not be changed except for grave cause, and when it is changed, otherwise than by the consent of all parties, reasonable notice of the change must be given. The non-attendance of a witness desired by any party is not sufficient cause, unless the Court is satisfied, on evidence properly taken and recorded as evidence in the suit, that the absent witness is material, and the party calling him has done all in his power to ensure his attendance. After this, if the Court be of opinion that without granting an adjournment, a failure of justice will result, it may, after hearing witnesses present, grant such adjournment, but in every instance the Court should record its reasons, and make an order for the costs thereof.

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 Scale of expenses. expenses, to the rules (if any) laid down by competent authority.(c) M. 161. (151) The sum so paid into Court shall be (d) tendered to the person summoned, at the time of serving the summons if it can bet served

Tender of expenses to witness.

personally.

Procedure where insuffi

cient sum paid in.

M. 162. (151) If it appear 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, 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§(e) 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.

Expenses if witness detained more than one day.

If it be 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 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.

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

M. 163. (152) Every summons for the attendance of a person to give evidence or 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.

M. 164. (153) Any person may be summoned to proSummons to produce do- duce a document without being summoned to give evidence; and

cument.

CHAPTER XIV.

Omnia præsumuntur contra spoliatorem.

PARTIES to a suit, if they wish a Court to summons witnesses, must pay proper expenses into Court to defray the cost of their travelling and attendance at Court. If an insufficient sum has been paid in, the Court can afterwards order the balance to be recovered by attachment and sale of moveable property. The same remedy is provided if the party at whose instance a witness was summoned and detained beyond the day for which he was summoned, refuse to pay the witness costs for the additional day of detention. Parties summoned merely to produce a document need not attend themselves, if they cause the document to be furnished to the Court. Time, place, and purpose of attendance are to be specified in every summons; and documents required must be described as accurately as can be. Witnesses who abscond, or fail to appear without good excuse, expose themselves to a fine of Rs. 500, which may be realized by attachment of their property. Persons in Court, strangers to a suit, and the parties themselves, can all be required to give evidence and produce documents in their possession. All persons within the local limits of a Court's original jurisdiction, or resident within fifty miles (two hundred if there be railway for five-sixths of the way) are bound to attend as witnesses, and cannot, without same penalties as those prescribed for non-attendance, leave without having been examined, or having received the Court's permission to go. Parties to a suit refusing to give evidence, or produce documents, incur the liability of having a decree passed then and there against them.

(a) A party is entitled to obtain

summonses for witnesses at any time before a case is tried. Gora Chand Ghose, v. Raj Kumar Das S. W. R. V. 111.; Indro Chandar Baboo v. Dunlop and others, S. W. R., IX. 530,

(b) All applications and petitions should have order of disposal endorsed on them. Bom. C. O. 4 This is exempt from any Court fee,

see Act VII. of 1870, sec. 19, § 14.,
which, among its exempted docu-
ment, classes a first application
for the summons of a witness or
other person to attend either to
give evidence or to produce a do-
cument, or in respect of the pro-
duction or filing of an exhibit not
being an affidavit made for the
immediate purpose of being pro-
duced in Court.

When a judicial process has to be executed
within the limits of a military cantonment,
it should he accompanied by a letter to
the military officer commanding, explaining
its general purport (M. H. C., p. 78).
A witness appearing will report himself to
the nazir or other officer of the Court, and
his name will at once be entered in the
Diary of Witnesses prescribed. (V. C. O.
C. H. C. p. 39).

(c) A witness is not entitled to any compensation for mere loss of time. Nawab Nazim of Bengal v. Rajah Prosanno Narayan Deb. (Hyde II. 236.)

The expenses granted to witnesses
in the N. W. P. Panjab,† Cen.
Prov. and Oudh are nearly all
alike. They are as follows:-
1. CLASS I.-Rs. 5 per diem, All Cove-
nanted and Commissioned Officers of
Government, Uncovenanted Officers hold-
ing appointments equal in rank to Extra
Assistant Commissioners, European and
Eurasians of the higher classes, and
Natives of distinction.

2. CLASS II.-Rs. 3 per diem. Non-offi-
cial Europeans or Eurasians of the middle
class, the higher description of Clerks in
the Public Offices, Tahsildars, Inspec-
tors of Police, or officials of similar rank,
and Native gentlemen of the higher
classes not coming under Class I.

3. CLASS III.-Re. 1 per diem. Other Europeans and Eurasians, inferior Clerks in Public Offices, Ministerial employés in Vernacular Offices or Departments, and Natives of respectability generally, such as zamindars and tradesmen of the better sort.

4. CLASS IV.-Annas 4 per diem. Natives below the preceding class, but with some status, such as inferior zamindars, petty tradesmen, &c.

This section does not apply to High 5. CLASS V.-Annas four (in Cen. Prov.

Courts in the exercise of their

ordinary civil jurisdiction

* C, O, 15 of 1863,

+ P. C, O., I, 83,

two) per diem. All Natives not included in the above classes, such as day laborers, &c.

C. P. C. O., I. 120, 121,