JUDGMENT
Sarjoo Prosad, J.
1. The appellant, Kabindra Narain Singh, has presented this appeal against a judgment of Agarwala, J., a Judge of this Court, imposing a fine of Rs. 250/- on the appellant in a proceeding for contempt of Court.
2. The facts giving rise to the proceeding are that the appellant was summoned to give evidence on behalf of the propounder of a will in a testamentary case pending before this Court. The genuineness of the will was questioned by the daughters of the alleged testator who had entered caveats. The said will purported to bear the signature of the appellant as an attesting witness; the date under the signature being the 25th of September, 1941, whereas the will purports to have been executed a couple of days earlier on the 23rd of September, in the presence of a number of other attesting witnesses. Evidently, therefore, the appellant was said to have attested on acknowledgment of execution of the document.
In that connection summons to the appellant was issued by this Court on the 24th of October 1945, the hearing having commenced on the 22nd, and the summons required the attendance of the appellant on the 29th. The summons, however, returned unserved with a note by the peon which was to the effect that the peon had gone to Rajipur and met the appellant there, and the appellant having taken the summons and having read the same refused to grant a receipt therefor; in consequence a copy of the summons was hung up on the north facing bungalow of the appellant. The date on which the summons appears to have been presented to the appellant is the 28th of October 1945, and the report appears to bear the signature of the local daffadar as an attesting witness. The alleged signature of the daffadar is in pencil and is now almost indistinct. The report does not expressly indicate who had accompanied the peon as an identifier at the time of the service; but the evidence is that the peon had gone to Rajipur in the company of Jagmohan Lall, the scribe of the questioned will.
In view of this report a notice was issued on the appellant to show cause why he should not be committed for contempt of the summons served on him on the 28th October 1945, to attend this Court as a witness on the 29th of October 1945, and for his failure to comply with the order of the Court. The appellant showed cause in which he stated that no summons had been served on him to attend this Court in connection with the above testamentary case, and that the report of the peon to the contrary was entirely false. The appellant further stated, that he was 58 years of age and was a chronic patient of sciatica and lumbago and had been operated upon twice, rendering his movements difficult. He further pointed out that Rajipur where the summons purports to have been served was in the district of Champaran 10 miles away from the nearest railway stations, namely, Motipur and Meshi, intercepted by a river; and even if the appellant had been served with the summons on the 28th of October, 1945, it would have been extremely difficult for him to appear in Court on the 29th of October. He accordingly prayed that the proceedings against him should be discharged as he had not committed any disobedience or contempt of the orders of this Court.
3. The learned Judge, after haying taken evidence in the case and after hearing the parties, came to the conclusion that the summons had been served on the appellant which he deliberately refused to obey. He accordingly passed the order under appeal.
4. The proof of service depends entirely on the evidence of the peon, Prabhu Bhagat alias Rambrich, and one Jagmohan Lall said to be a gomasta and patwari of the Maksudpur Raj. The dafadar has also been examined in the case, but he denies having attested any such service or any such service having been made in his presence. I shall deal with the evidence in their order. (After reviewing their evidence his Lordship came to the conclusion that the evidence of the peon and Jagmohan could not be impliedly relied on.)
5. It is suggested that there was no reason for Jagat Kishore or Jagmohan Lall to suppress the service of summons on the witness because it was to the interest of the propounder of the will to examine all the attesting witnesses to the document. Of course ordinarily it would be the duty of the propounder to produce all such witnesses in Court, but it may well be that where a witness is unwilling to depose, the propounder may seek to be absolved of his obligation to examine him by suppressing the summons on him and throwing the burden of non-appearance upon that witness. At any rate, it is quite clear from what transpired during the trial of the testamentary case itself that the propounder of the will was not seriously anxious to examine the appellant. The appellant was eventually produced before the Court under a warrant but the propounder of the document did not examine him. Aganvala, J., recognises that the propounder might have hesitated to put in the witness-box on his behalf a person who clearly demonstrated his reluctance to give evidence. That may equally have been the reason for the propounder of the will to suppress the service of summons on the appellant. These are, however, mere speculations. But on the evidence as it stands, it is difficult to hold that the peon actually presented the summons to the appellant or that the appellant refused to accept the same. The evidence, in my opinion, does not inspire sufficient confidence to enable me to hold otherwise, and at any rate I find no reason to disbelieve the evidence of the daffadar as against the evidence of the peon and the scribe.
6. I am also satisfied that in any event it would not have been possible for the appellant to present himself before this Court on the 29th of October 1945, when the service is alleged to have
been effected on the 28th of October 1945, only a day prior to the date fixed. The peon admits that there are two stations to go to Rajipur they being either Mehsi or Motipur, and that Rajipur would be about eight miles off from either of these stations, and having regard to the physical disabilities alleged in the show cause petition which have not been denied by any of the witnesses in evidence, I am inclined to think that the appellant had not sufficient time to enable him to present himself before this Court; Order XVI, Rule 9, Civil Procedure Code, enjoins that 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 travelling to the place at which his attendance is required.
7. For the reasons stated above, I would allow this appeal, set aside the decision of Agarwala, J., and give the benefit of doubt to the appellant. It appears that; the fine imposed on him has been already deposited. This should now be refunded to him.
Das, J.
8. I agree.