JUDGMENT
Jaspal Singh, J.
(1) The petition revolves around Order 16 Rule 12 of the Code of Civil Procedure and its ambit and scope However, first the facts.
(2) In a suit entitled Nar Singh v. Shashi Kiran summons under Order 26 Rules 1 and 5 of the Code were issued in the name of Assistant Assessor & Collector, House Tax Department, Municipal Corporation of Delhi. West Zone “with complete file of house tax regarding property No. 633, Shakurpur, Delhi now known as Rishi Nagar”. In response to the said summons, Baldev Ram, Assistant Assessor & Collector appeared in court on July 28, 1992. He entered into the witness box as Public Witness 12 and as he had not brought the original record summoned from him, the learned trial Judge invoked the provisions of Order 16 Rule 12, imposed upon him a fine of Rs. 500.00 , and as he failed to deposit the fine so imposed; ordered issuance of warrants of attachment. It is this order which is under challenge.
(3) The attack was two pronged. It was said that the learned trial Judge bad no jurisdiction to pass the order as there had been no previous proclamation or order of attachment under Order 16 rule 10 and secondly as no notice to show cause was given before imposition of fine.
(4) Is issuance of a proclamation or an order of attachment of property under Order 16 Rule 10 a condition precedent to the imposition of fine under Rule 12.
(5) There are two single Judge decisions of the Calcutta High Court which do say that a previous issuance of a proclamation or order of attachment is a condition precedent. They are Ram Gopal v. Secy of State (1918) 31 Clj 363 and Ashutosh Mullick v. Secy. of State (1918) 571.C. 302. The judgments won approval of a Division Bench of the Allahabad High Court in B. Hirdev Narain v. Emperor Air 1929 Allahabad 850 wherein it was held that an order under Rule 12 can be passed only: “(1) If a proclamation has been issued under Clause (2), R. 10, or (2) If no proclamation has been issued, either a warrant has been issued for the arrest of the witness or an order for attachment of his property has been passed or; (3) If a proclamation as well as a warrant has been issued or an order for attachment of the property of the witness has been passed.” and that if neither of these conditions are satisfied the court has no jurisdiction to im- pose fine under Rule 12.
(6) Should I, then, accept the proposition? I am afraid I cannot.
(7) The year 1976 brought about a significant change in Order 16 rule 12. It saw the incorporation of sub-rule (2) which runs as under: “12(2) Notwithstanding that the Court has not issued a proclamation under sub-rule (2) of rule 10, nor issued a warrant nor ordered attachment under sub-rule (3) of that rule the Court may impose fine under sub-rule (1) of this rule after giving notice to such person to show-case why the fine should not be imposed.”
(8) I felt that by adding sub-rule (2) the Legislature had clinched the issue and that fine could be imposed without satisfying the so-called condition precedent with regard to proclamation or attachment, but not the learned counsel. She said that retention of the words “such person” in sub-rule (1) of Rule 12 could not be lost sight of and that as the said words could not have reference to a person who had not been called upon by a proclamation to attend the court on a particular date, or against whom proceedings had not been taken under Rule 10, therefore the addition of sub-rule (2) of Rule 12 would have no effect, was it, she said, a case of deliberate oversight or meaningful forgetfulness? She wondered why, if what she had pleaded was not the correct line of thought, the legislature in its wisdom had retained the words “such person”.
(9) Is it, then, a case akin to what Ogden Nash said: “God in his wisdom made the fly. And then forgot to tell us why”?
(10) I think, with respect, that the view taken by the two learned, single Judges of the Calcutta High Court and by the Division Bench of the Allahabad High Court in the decisions cited above put an unnecessary fetter on the powers of the court to deal with refractory witnesses. I also fell, with respect again, that the judges and more particularly of the Allahabad Bench while going up and down and cross deep linguistic gullies in fathoming the meaning and import of the words “such person”, failed to remember the conclusion of Jacques Derrida, the widely revered Guru of Deconstruction, that a’ text may be saying something quite other than what it appears to be saying (See: The Dictionary of Modern Thought compiled by Bullock, Stall bras and Trombley).
(11) To say that a judge cannot fine a witness unless the preliminaries of attaching his property or issuing a proclamation against him are first gone through may make a travesty of procedure. Take the case in hand. In response to the summons, the witness did appear. He brought the shadow file but not the original record. The court felt it was a case for imposition of fine. What should the court have done? If one is to agree with the decisions of the Calcutta and Allahabad High Court, the court in such a situation could only have said: “You have disobeyed the summons. I think I must impose fine but then I feel so helpless for I have so far neither issued proclamation nor attached Jour property. Will you please be good enough to go away, for some time at least, so that I issue a proclamation or attach your property for, that is the condition precedent to, so to say, a noose to ultimately put your head in.”
(12) Are you not, thereby, issuing proclamation to the witness who is already present and then attaching his property to make him know what he already knows? Can this be the correct position? The amendment of 1976 merely removes the doubt, if any. And as for the words “such person”, they may very well refer to a person who appears but fails to produce the documents asked for and not necessarily to a person to whom either a proclamation had been issued or against whom proceedings have been taken under sub-rule (3) of rule 10. And once this position is accepted there ceases to be any conflict between sub-rules (1) and (2) of Rule 12
(13) What about the need for a show cause notice? Sub-rule (2) brooks no doubt. It lays down that the court may impose fine under sub-rule (1) of Rule 12 after giving notice to such person to show cause why the fine should not be imposed. Surely no such show cause notice was given. As a result fairness was reduced to a farce, and the victim got lock-jawed.
(14) Having Found myself one with the learned counsel for the petitioner on the second ground of attack, should I proceed to allow this petition? There is a hurdle and it comes from section 104(1)(h) of the Code of Civil Procedure which provides: “104(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:- (h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;”
(15) Clearly, thus, the impugned order is appealable. But then, appeal it is not. It rather is a petition under Article 227 of the Constitution of India.
(16) I am conscious, I must confess, of the decisions, some emanating from this very court, taking the view that where alternative remedy is provided for, writ petition under the Constitution would not lie. But then, let us have a look at the long so journal of the petition. It came up before the court on November 25, 1992. That was the first hearing. It was then taken up on December 4, 1992. The next date was January 23, 1993. On January 25, 1993 when it was taken up again, a learned single Judge ordered for issuance of notice of the petition. Ultimately, on July 19, 1994 yet another learned single Judge ordered it to be listed for disposal. We are now in 1997. Having allowed the petition to travel that far would an order of dismissal on the ground that alternative remedy of appeal was available serve the interests of justice? More so when, thanks to our endemic delays, the appeal has already been rendered hopelessly barred by limitation? Would it preserve judicial temper? In short, would it be fair, reasonable, rational, or say, just? Would it not be yet another repeat of an innocent’s sacrifice as in E.M.Foster’s Howards End, though in a different setting? Let us not make law sterile. Let it remain life-saving. It is that what gives justice its special savor of nobility. I will thus not dismiss the petition and in saying so, draw strength from Hirdav Narain v. I.T. Officer, Bareilly .
(17) The petition is allowed and as a result the impugned order is set aside.