Order XVI CPC - Summoning and Attendance of Witnesses: Rules 8 to 14
Rules 8 to 14 of Order XVI of the Code of Civil Procedure, 1908 govern service of witness summons, the time allowed for service, consequences of failure to comply, attachment and sale of property, fines, and the Court's own power to summon witnesses.
Rule 8 - Summons how served
Every summons 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 to all summonses served under this rule.
Rule 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, so as to allow that person a reasonable time for preparation and for travelling to the place at which attendance is required.
Rule 10 - Procedure where witness fails to comply with summons
(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 the summons, the Court:
(a) shall, if the certificate of the serving officer has not been verified by affidavit, or if service of the summons has been effected by a party or the party's 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 the party's agent, as the case may be, who effected service, or cause that person to be examined by any Court, touching the service or non-service of the summons.
(2) Where the Court sees reason to believe that the evidence or production is material, and that the person has, without lawful excuse, failed to attend or produce the document in compliance with the summons, or has intentionally avoided service, it may issue a proclamation requiring that person to attend to give evidence or produce the document at a time and place named in the proclamation. A copy of the proclamation shall be affixed on the outer door or other conspicuous part of the house in which that person 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 that person and may order attachment of 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 attachment of immovable property.
Rule 11 - If witness appears, attachment may be withdrawn
Where, at any time after attachment of property, the person appears and satisfies the Court:
(a) that the person did not, without lawful excuse, fail to comply with the summons or intentionally avoid service; and
(b) where the person failed to attend at the time and place named in a proclamation issued under Rule 10, that the person had no notice of the 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.
Rule 12 - Procedure if witness fails to appear
(1) The Court may, where the person does not appear, or appears but fails to satisfy the Court, impose upon that person such fine not exceeding five hundred rupees as it thinks fit, having regard to the person's condition in life and all the circumstances of the case. The Court may also order the property, or any part of it, to be attached and sold or, if already attached under Rule 10, to be sold for satisfying the costs of attachment together with the amount of the fine, if any.
Provided that, if the person whose attendance is required pays into Court the costs and fine, the Court shall order the property to be released from attachment.
(2) Even where the Court has not issued a proclamation under Rule 10(2), issued a warrant, or ordered attachment under Rule 10(3), it may impose a fine under sub-rule (1) after giving notice to the person to show cause why the fine should not be imposed.
Rule 13 - Mode of attachment
The provisions relating to attachment and sale of property in execution of a decree shall, so far as applicable, apply to any attachment and sale under this Order as if the person whose property is attached were a judgment-debtor.
Rule 14 - Court may of its own accord summon witnesses who are not called by the parties
Subject to the provisions of the Code concerning attendance and appearance and to any law for the time being in force, where the Court at any time considers it necessary to examine any person, including a party to the suit, who has not been called as a witness by a party, the Court may of its own motion cause that person to be summoned as a witness to give evidence or to produce any document in that person's possession on a day appointed by the Court, and may examine that person as a witness or require production of the document.