Order XVI Rule 10 CPC - Procedure When a Witness Fails to Comply with Summons

Order XVI Rule 10 CPC: statutory provision

Rule 10 - Procedure where witness fails to comply with summons. The provision has three sub-rules:

Sub-rule (1): examination regarding service of summons

Where a person summoned to give evidence or produce a document fails to comply, the court shall examine on oath the serving officer or the party or agent who effected service when the serving officer's certificate is not verified by affidavit or service was effected by a party or agent. Where the certificate is verified by affidavit, the court may conduct that examination. The court may also cause the examination to be carried out by another court. The examination concerns service or non-service of the summons.

Sub-rule (2): proclamation requiring attendance

If the court has reason to believe the evidence or production is material and that the person, without lawful excuse, failed to comply or intentionally avoided service, it may issue a proclamation specifying the time and place for attendance or production. A copy must be affixed to the outer door or another conspicuous part of the person's ordinary residence.

Sub-rule (3): arrest warrant and attachment

Instead of, together with, or after issuing the proclamation, the court may, in its discretion, issue a warrant of arrest with or without bail and may attach property up to an amount covering the costs of attachment and any fine that may be imposed under Rule 12. A Court of Small Causes cannot order attachment of immovable property under the central proviso. Applicable local amendments should also be checked.

Read the Code of Civil Procedure, 1908 on India Code (official PDF).

Meaning and requirements of Rule 10

Witness summons: a court's direction requiring a person to attend to testify or to produce a specified document. Proof of service: evidence establishing whether and how that summons reached the person. Lawful excuse: a legally sufficient reason for non-compliance, assessed by the court on the facts. Proclamation: a formal public direction to attend or produce the document. Attachment: a court-directed restraint over property to secure the amounts permitted by the rule.

Non-attendance alone does not make a warrant or attachment automatic. The court must consider the statutory conditions, including materiality of the evidence or document and the absence of a lawful excuse or intentional evasion of service.

How the court may proceed when a witness fails to appear

1. Check the summons: identify the purpose, attendance date and required document, if any.
2. Verify service: apply the mandatory or discretionary examination requirement under Rule 10(1).
3. Assess materiality and explanation: consider whether the testimony or document is material and whether non-compliance was without lawful excuse or service was deliberately avoided.
4. Consider a proclamation: the court may specify a new time and place and direct the prescribed affixation.
5. Consider coercive measures: subject to the rule, the court may issue a warrant and/or attachment order. These measures are discretionary, not inevitable.

Related provisions of Order XVI

Rule 5 requires the summons to specify the time, place and purpose of attendance; Rule 8 governs service and proof of service, subject to the Rule 7A exception; and Rule 9 requires adequate time for preparation and travel.

Rule 11 provides for release of attached property where the witness appears and satisfies the court about lawful excuse or avoidance of service and, where relevant, lack of timely notice of the proclamation. Rule 12 permits a fine up to Rs. 500 under the central rule and addresses attachment and sale, subject to its conditions, including the show-cause procedure under Rule 12(2). Rule 13 applies execution-related rules to attachment and sale so far as applicable.

See also Order XVI Rule 8, Order XVI Rule 9 and the CPC overview.

Practical illustration

A court summons a records custodian to produce a relevant register. The custodian does not attend or send the document. The court first examines whether service is established as required by Rule 10(1). If it finds the register material and has reason to believe the custodian avoided service or failed to comply without lawful excuse, it may issue a proclamation and consider the measures available under Rule 10(3). The court must apply the facts and applicable procedural safeguards; non-compliance does not automatically justify arrest.

Frequently asked questions

Can a civil court issue an arrest warrant against a witness?

Yes. Order XVI Rule 10(3) permits a discretionary warrant, with or without bail, where the requirements of the rule are satisfied.

Is a proclamation always required before a warrant?

No. Rule 10(3) expressly allows a warrant in lieu of, at the time of, or after issuing a proclamation.

Can the witness explain the failure to attend?

Yes. A lawful excuse is relevant under Rule 10(2), and Rule 11 provides conditions for release of attached property after appearance.

Can property be attached for any amount?

No. Rule 10(3) limits attachment by reference to the costs of attachment and any fine imposable under Rule 12; the central Rule 12 specifies a fine ceiling of Rs. 500.

Official legislation and applicability

Primary source: India Code - Code of Civil Procedure, 1908 (Act 5 of 1908). Court-specific rules and applicable High Court or state amendments may affect the procedure. Check the law and local rules governing the court concerned.

This article explains the general central CPC provisions and is not a substitute for advice on a particular proceeding.