AVADH BIHARI SARAN Vs. SKPSINGH

JUDGEMENT

(1.) This is an appeal against an order of the Subordinate Judge of Gaya, fining the appellant Rs. 100, besides ordering him to pay Rupees 3 of the cost of an attachment under Section 17, read with Rule 10 of Order 16, Civil P.C. The appellant was a defence witness in a case tried by the Subordinate Judge, and had been examined as such on 13 April 1934, and cross, examined on the following day. It appears that the plaintiff afterwards moved the Court for summoning the appellant for further cross-examination, and that the appellant, an employee of the District Board, appeared in Court on the 15 of that month. On this date, he was not cross-examined; and the learned Subordinate Judge finds that the appellant was directed to appear for cross-examination on 17 May and that as appellant failed to comply with that order, he had rendered himself liable to punishment under Rule 17, read with other Rules, of Order 16, Civil P.C. The order-sheet does not show that on 15 May 1934, the appellant was ordered to reappear on the 17th.

(2.) It does appear from the order sheet however that on the 16 work ran short and, at the instance of the plaintiff, an attempt was made to get hold of the appellant from the District Board Office and let him be cross-examined by the plaintiff. This attempt failed because the appellant at first declined to come unless permitted by his superior, the District Engineer; and when the Court sent a slip to the District Engineer, and the District Engineer passed the necessary order, the appellant was not to be found. This incident, which is supported by materials available in the record seems to have led to some confusion in the mind of the lower Court; for the learned Subordinate Judge says, not only that the appellant had been ordered to come on 17 May 1934, but that before taking steps for compelling his attendance, a slip was sent to the District Engineer asking him to direct his clerk--the appellant--to come, that the District Engineer ordered the appellant to comply at once "but still he would not come," and that thereupon the Court again wrote to the District Engineer and was informed in reply that the appellant was not in the office.

(3.) There is no material to show that the appellant was in the District Board; Office at all on the 17th. On the contrary, there is a note, written or signed by the Chairman of the District Board on 20 May, not very long afterwards, that in the absence of any further instructions from the Court, that is to say, instructions after 15 May the appellant had been deputed on District Board work to Calcutta, and was likely to come back within two or three days. The appellant's case was that, as a matter of fact, he was away in Calcutta on District Board work on the 17th, the date on which the Subordinate Judge has found that the appellant wilfully absented himself from Court though required for cross-examination as a witness. Much of what happened in connexion with this matter is not to be found in the order sheet of the main case at all. On 18 May, the Subordinate Judge took some evidence, recited certain facts, and directed the issue of a warrant of arrest.