JUDGMENT

Maclean, C.J. - This is a rule to show cause why an order made by the Munsif and confirmed on appeal by the District Judge inflicting a fine of 500 rupees on the Applicant, should not be set aside The fine, the maximum allowed, was imposed under sec. 174 of the Code Sec. 174 of the CPC is a section of a highly penal nature, and in my judgment its provisions, in order to give validity to anything purporting to be done under them, must be strictly complied with. Sec. 174 is as follows :--

If any person on whom a summons to give evidence or produce a document has been served fails to comply with the summons, or if any person so summoned and attending departs in contravention of sec. 173, the Court may order him to be arrested and brought before the Court.

Provided that no such order shall be made when the Court has reason to believe that the person so failing had a lawful excuse for such failure.

When any person so brought before the Court fails to satisfy it that he had a lawful excuse for not complying with the summons, the Court may sentence him to a fine not exceeding five hundred rupees.

If any person so apprehended and brought before the Court cannot, owing to the absence of the parties or any of them give the evidence or produce the document which he has been summoned to give or produce, the Court may require him to give reasonable bail or other security for his appearance at such time and place, as it thinks fit, and, on such bail or security being given, may release him.

We have to ascertain whether the conditions which enabled the Court to act under that section, existed in the present case.

2. In this case the Applicant, a zemindar of position, was the Plaintiff in a rent-suit. The Defendant desired to call him as a witness. It is suggested, and it is not improbable that the Defendant took that course, not because he believed that the Plaintiff could give any evidence which would assist his case, but with the view of harassing and worrying him. But be that as it may, he took out a summons against him, and the first, the paramount question is, was the summons duly served upon the present Applicant? In my opinion it was not, and, if so, the power of see. 174 did not become exercisable.

3. Sec. 166 of the CPC says that " every summons to a person to give evidence shall be served in the manner hereinbefore prescribed for service of summons on the Defendant, and the rules contained in Chapter VI as to proof of service shall apply in the case of all summonses served under this section." That takes us back to that portion of Chapter VI, which relates to service of summonses. Sec. 75 says, " whenever it may be practicable, service shall be made on the Defendant in person, unless he have an agent empowered to accept the service, in which case service on such agent shall be sufficient.

4. It is clear in this case that there was no personal service of this summons upon the Applicant. I gather from the return made by the peon that the service was intended to be effected under sec. 80 of the Code. Sec. 80 of the Code says :-- " If the Defendant or other person refuses to sign the acknowledgment--I need not deal with that for the suggestion has not been made--or if the serving officer cannot find the Defendant, and there is no agent empowered to accept the service of the summons on his behalf, nor any other person on whom the service can be made, the serving officer shall affix a copy of the summons on the outer door of the house in which the Defendant ordinarily resides, and then return the original to the Court.

5. The return of the peon is in these terms--I need not deal with the earlier portion which relates to the service on the other witnesses, I need only deal with that portion which deals with the Applicant under this application, which is as follows :--

The remaining witness No. 1 being in Calcutta, the copy of summons in his name has been hung up on the mat wall of the kutchery house of the Defendant's residence." The questi