Code of Civil Procedure, 1908 (CPC)
Orders XVI and XVI-A CPC: Summoning and Attendance of Witnesses
A trial depends on witnesses appearing, and on documents in the hands of third parties being produced. Order XVI of the Code of Civil Procedure, 1908 provides the machinery: the list of witnesses, the summons to attend or to produce, the expenses that must be tendered, the consequences of failure to attend, and the right of a party to bring a witness without summons. Order XVI-A deals with the particular case of a witness who is confined in prison. These notes cover both Orders.
1. The List of Witnesses: Rule 1
§ Order XVI Rule 1, CPC 1908 (1) On or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons as they desire. (2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned. (3) The Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness other than those whose names appear in the list referred to in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list. |
Three points define the scheme. The list must be filed within fifteen days of the settlement of issues, so that the other side knows who will be called and the court can plan the trial. The application for a summons must state the purpose for which the witness is wanted, which allows the court to refuse summonses sought to harass or to pad the record. And sub-rule (3) preserves flexibility: a witness not named in the list may still be called, with the court's permission, on sufficient cause being shown for the omission and reasons recorded.
§ Witnesses produced without summons: Rule 1A Rule 1A provides that, subject to the provisions of Rule 1(3), any party to the suit may, without applying for summons, bring any witness to give evidence or to produce documents. The rule recognises that a party who can secure his witness's attendance need not trouble the court's process at all. It is the ordinary course for a party's own witnesses. The constraint is the list: a witness brought without summons must still be one the party is entitled to call, so if he was not named in the Rule 1 list, permission under Rule 1(3) is needed. |
2. Summons to Witness and Expenses: Rules 2 to 5
i. Rule 2: expenses to be deposited. The party applying for a summons must, before the summons is granted and within a period fixed by the court, deposit in court a sum of money that appears sufficient to defray the travelling and other expenses of the person summoned, in attending the court. The court may require a further sum where the initial deposit proves insufficient.
ii. Rule 2A: expenses of the witness. Where a person summoned is required to give evidence, a sum is tendered to him as his expenses of travelling to and from the court and of his stay, as the court considers reasonable.
iii. Rule 3: tender of expenses. The sum deposited shall be tendered to the person summoned, at the time of serving the summons, if it can be served personally.
iv. Rule 4: expenses of witnesses detained beyond one day. Where it is necessary to detain a witness for more than one day, the court may order the party to deposit a further sum for each day of detention, and where the party fails, the court may release the witness or order him to be paid out of any money in court.
v. Rule 5: time and place of attendance. Every summons shall specify the time and place at which the person is required to attend, and whether his attendance is required for the purpose of giving evidence or producing a document, or both.
§ The expenses requirement is not a formality The tender of expenses under Rules 2 and 3 is a condition of the validity of the process in practical terms: a witness who was not tendered his expenses cannot fairly be penalised for not attending, and courts consistently decline to take coercive steps under Rule 10 where the expenses were never tendered. The policy is simple. A stranger to the litigation is being compelled to give up his time for a dispute that is not his own, and the party who wants him must bear the cost of his attendance. |
3. Summons to Produce Documents: Rules 6 to 8
Rule 6 provides that any person may be summoned to produce a document without being summoned to give evidence, and any person so summoned shall be deemed to have complied with the summons if he causes the document to be produced instead of attending personally to produce it. The distinction matters in practice: a bank officer or a records custodian need not sit through the hearing if the record is sent with the requisite certificate. Rule 7 provides that any person present in court may be required by the court to give evidence or to produce a document then and there in his possession or power. Rule 8 requires the summons to be served, so far as may be, in the manner prescribed for service of summons on a defendant, which carries in the whole of Order V.
4. Failure to Attend: Rules 10 to 13
§ Order XVI Rule 10, CPC 1908 (in substance) (1) Where a person to whom a summons has been issued fails to attend, or fails to produce the document, and the court is satisfied that the summons was duly served or might have been served in time and that his expenses were tendered, the court may issue a proclamation requiring him to attend at a time and place named therein, a copy being affixed on the outer door or other conspicuous part of his residence. (2) In lieu of, or at the time of issuing the proclamation, the court may, in its discretion, issue a warrant, either with or without bail, for the arrest of such person, and may make an order for the attachment of his property to such amount as it thinks fit. (3) The court may also impose upon him a fine not exceeding five hundred rupees. |
The machinery is coercive, and the safeguards are correspondingly important. Before any of these steps may be taken the court must be satisfied on two matters: that the summons was duly served, or might have been served in time had the person not evaded it, and that the person's expenses were tendered. Rule 11 allows the court to release a person arrested if he attends and shows cause. Rule 12 provides for the fine and the procedure for its recovery, after the person has had an opportunity to show cause. Rule 13 provides for the attachment of property and its withdrawal on attendance. Rule 14 empowers the court, where it thinks it necessary to examine any person other than a party, of its own motion, to summon and examine him as a witness.
i. Rule 15: duty of the person summoned. A person summoned to attend must attend at the time and place named, must attend at each hearing until the suit is disposed of or he is discharged, and may be required to give evidence or produce documents.
ii. Rule 16: when the party's own witness fails. Where a party's witness fails to attend, the party may apply for the coercive steps, but the court will not delay the trial indefinitely for a witness whose attendance the party cannot secure.
iii. Rule 20: consequence of refusal to give evidence. Where a party refuses without lawful excuse to give evidence or to produce a document at the hearing, the court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit.
5. Order XVI-A: Witnesses Confined in Prison
§ Order XVI-A, CPC 1908 (in substance) Rule 2. Where a party desires the evidence of a person confined or detained in a prison, he may apply to the court for an order requiring the officer in charge of the prison to produce that person before the court to give evidence. Rule 3. Before making such an order, the court must be satisfied that the expenses of producing the prisoner have been deposited by the applicant. Rule 4. The State Government may, by general or special order, exclude persons in specified classes of detention from being taken to court, on grounds including the sentence undergone, the risk of escape or the interests of public order. Rule 5. Where the officer in charge is so directed, or where the person cannot be produced, the court may direct that his evidence be recorded in the prison on commission under Order XXVI. Rule 6. The provisions of Order XVI apply, so far as may be, to a person produced under this Order. |
The Order, inserted by the Amendment Act of 1976, balances two interests: a litigant's right to the evidence of a person who happens to be in custody, and the security and administrative considerations that attend removing a prisoner from the prison. The balance is struck by giving the court the ordinary power to require production, subject to the deposit of expenses, while allowing the State Government to exclude defined classes and allowing the court, in the alternative, to have the evidence recorded in the prison itself on commission, which is the usual course where production is impracticable.
6. The Scheme in Summary
Step | Rule | What is required |
|---|---|---|
List of witnesses | Order XVI Rule 1(1) | Filed within fifteen days of settlement of issues; a witness not listed may be called only with permission under Rule 1(3) |
Application for summons | Order XVI Rule 1(2) | Must state the purpose for which the witness is to be summoned |
Deposit and tender of expenses | Order XVI Rules 2, 2A and 3 | The applicant deposits, and the sum is tendered to the witness when the summons is served |
Summons to give evidence or produce | Order XVI Rules 5 and 6 | The summons specifies the time, place and purpose; a person summoned only to produce may send the document |
Witness without summons | Order XVI Rule 1A | A party may bring any witness without applying for a summons, subject to the list requirement |
Failure to attend | Order XVI Rules 10 to 13 | Proclamation, warrant, attachment of property and fine, subject to proof of service and tender of expenses |
Prisoner as witness | Order XVI-A | Order for production on deposit of expenses, subject to State Government exclusions; alternatively evidence on commission in prison |
7. Landmark Points
- Order XVI Rule 1(1) and (3). The list of witnesses is filed within fifteen days of the settlement of issues; an unlisted witness may be called only with the court's permission, on sufficient cause shown and reasons recorded.
- Order XVI Rule 1A. A party may bring a witness without applying for a summons, which is the ordinary course for his own witnesses.
- Order XVI Rules 2 and 3. Expenses must be deposited before the summons issues and tendered to the witness at the time of service; coercive steps are not taken where expenses were not tendered.
- Order XVI Rule 10. Proclamation, warrant, attachment and fine are available on failure to attend, but only where the court is satisfied as to service and tender of expenses.
- Order XVI-A Rules 2 to 5. A witness confined in prison may be produced on deposit of expenses, subject to State Government exclusions, or his evidence may be recorded in prison on commission.
8. Frequently Asked Questions
When must the list of witnesses be filed?
On or before the date the court appoints, and not later than fifteen days after the date on which the issues are settled, under Order XVI Rule 1(1). The application for a summons must state the purpose for which the witness is proposed to be summoned.
Can a party call a witness not named in the list?
Yes, but only with the court's permission under Order XVI Rule 1(3), on the party showing sufficient cause for the omission and the court recording its reasons.
Can a party bring a witness without a summons?
Yes. Order XVI Rule 1A allows a party, subject to Rule 1(3), to bring any witness to give evidence or produce documents without applying for a summons, which is the usual course for a party's own witnesses.
Who pays the expenses of a summoned witness?
The party applying for the summons. Under Rules 2 and 3 he must deposit a sum sufficient to cover the witness's travelling and other expenses before the summons is granted, and that sum is tendered to the witness at the time the summons is served.
What happens if a summoned witness fails to attend?
Under Order XVI Rule 10 the court may issue a proclamation requiring attendance, and in its discretion a warrant of arrest with or without bail, an order attaching his property, and a fine not exceeding five hundred rupees, but only where it is satisfied that the summons was duly served and his expenses were tendered.
Must a person summoned only to produce a document attend in person?
No. Under Order XVI Rule 6, a person summoned to produce a document without being summoned to give evidence is deemed to have complied with the summons if he causes the document to be produced instead of attending personally.
How is the evidence of a person in prison taken?
Under Order XVI-A the court may order the officer in charge of the prison to produce him, on the applicant depositing the expenses, subject to any exclusion by the State Government. Where production is impracticable, the court may direct that his evidence be recorded in the prison on commission under Order XXVI.
9. Related Topics in This CPC Series
- Order XVIII: Hearing of the Suit and Examination of Witnesses
- Order XVII: Adjournments and the Three-Adjournment Rule
- Order XIX: Affidavits
- Issue and Service of Summons: Sections 27 to 29 and Order V