KEDARNATH SHERSINGHDAS Vs. NOMANBHAI KOORBAN HOOSEIN

JUDGEMENT

(1.) These two matters which have come up before me in chambers for the purpose of determining whether the respondent in each case can claim exemption from arrest Under Section 135, Civil P.C., in execution of an award filed in this Court in each of the two matters respectively. Both the matters were ordered by no to be heard together on counsel's chamber day, as there was a common question of law in either of them and counsel wished to argue it before me. (After setting out the facts in the two cases, his Lordship proceeded.) Section 135, Civil P.C., provides inter alia that when a matter is pending before a competent Court or tribunal, a party to that matter is exempt from arrest while going to or attending the tribunal for the purpose of such matter and while returning from such Court or tribunal. The principle on which that provision is based has been stated to be that freedom from fear of arrest encourages willing attendance on the part of the party in Court where his matter is pending, and thereby tends to the advancement of justice. It has also been held that the rule confers no personal privilege, for the privilege is not given by law for the personal benefit of the party claiming exemption, but is solely given in the interests and for the better administration of justice. It was however argued on behalf of the petitioners, that if a party comes from up country to Bombay for the purpose of the matter which is pending before a competent Court and puts up at a temporary place of residence in Bombay, he is only privileged from arrest during the time he goes to Court from that temporary place of residence, attends and returns from the Court to the same place. In my opinion the provision laid down in Section 135 is much wider, or rather has a wider application then what is sought to be1 made out by the learned Counsel for the petitioners. The word "while" implies that there is a period of time occupied in going to, attending and returning from the tribunal, which period, of course, must be variable according to each case. The section however does not particularize any place from which a party goes to the tribunal, or to which he returns.

(2.) In the case of Persse V/s. Persse [1886] 5 H.L.C. 671 the Lord Chancellor observed that if the Court was satisfied that the attendance in Court of the party, who is arrested and claims exemption, was bona fide, some latitude should be allowed in a case where that party was not resident in the city in which his case was heard. If the Court is so satisfied, such a party would be privileged from arrest. In that case the appellant had come from Ireland to London for the purpose of his appeal against a decree of the Lord Chancellor of Ireland. He came to London in the month of January, though the hearing of the appeal was not expected till the month of March, and was, as a matter of fact, adjourned and notified for 22nd May. He was staying in London in his chambers on 9 May when he was arrested on a writ of attachment issued for non payment of costs pursuant to an order of the Court. The Lord Chancellor held that if the party had been arrested in the mon January, or February, he could not have claimed the exemption, because that would not be considered a reasonable time to go to the tribunal in London, when the hearing in the first place was notified for the month of March. If therefore some latitude, which I think must be reasonable, is shown to a party coining from an outside place to attend a Court before which his matter is pending, I see no reason why an equally reason party returning to the outside place whence he came.

(3.) In the case of Appasamy Pattar V/s. P.E. Govindan Nambiar (2) the defendant was summoned by the plaintiff and examined by him as a witness on his behalf. A decree was passed in favor of the plaintiff and on the plaintiff's application the defendant was immediately arrested. It was held that he was exempt from arrest, because he was entitled to a reasonable time to return to his home. The statement however of law has been laid down in these words (p. 145 of 4 M.H.C.): It is the well established rule of English law that a witness or a party to a civil suit, whoso attendance is required on a trial before a judicial tribunal, is protected from arrest on civil process during the time reasonably occupied in going to, attending at, and returning from the place of trial.