Witness Expenses and Compensation in Civil Procedure
Witnesses play a crucial role in the administration of justice, and fair compensation for their expenses, including travel costs, is a fundamental right in a civilized justice system. This article discusses the provisions in the Code of Civil Procedure for the payment of witness expenses and the scale of expenses to be borne by the parties involved.
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EXPENSES OF WITNESESS EXPENSES OF WITNESESS DIET MONEY DIET MONEY Procedure and Practice Procedure and Practice By: By: Zia Zia- -ur ur- -Rehman Rehman District & Sessions Judge, Mansehra District & Sessions Judge, Mansehra 1
Witness plays a key role in the administration of justice. The objective of justice cannot be conceived without the witnesses. Because of its important position, civilized societies ensure the protection of witnesses rights. cooperation of 2
Provision of fair compensation to witnesses to meet the travelling expenses in passing to and from the Court is an important right of witness and a salient feature of a civilized justice system. Code of Civil Procedure, 1908, Order XVI XVI Rule Rule 2 2, , 3 3 & & 4 4 regulates expenses of witnesses. The relevant rules are reproduced hereunder for ready reference: Order 3
ORDER XVI RULE 02 OF CPC 2 2. . Expenses Expenses of of witness applying applying for for summons summons shall, before the summons is granted and within a period to be fixed, pay into Court such a sum of money as appears to the Court to be sufficient to defray the travelling and other expenses of the person summoned in passing to and from the Court in which he is required to attend, and for one day s attendance. witness to to be summons ( (1 1) ) The party applying for a be paid paid into into Court Court on on 4
ORDER XVI RULE 02 (2) OF CPC Experts In determining the amount payable under this rule, the Court may, in the case of any person summoned to give evidence as an expert, allow reasonable remuneration for the time occupied both in giving evidence and in performing any work of an expert character necessary for the case. 5
ORDER XVI RULE 02 (3) OF CPC Scale Scale of of Expenses subordinate to a High Court regard shall be had, in fixing the scale of such expenses, to any rules made in that behalf. Expenses--- ---( (3 3) ) Where the Court is 6
ORDER XVI RULE 03 OF CPC 3 3. . Tender Tender of of expenses paid into Court shall be tendered to the person summoned, at the time of serving the summons, if it can be served personally. expenses to to witness witness The sum so 7
ORDER XVI RULE 04 OF CPC 4 4. . Procedure Procedure where such officer as it appoints in this behalf that the sum paid into Court is not sufficient to cover such expenses or reasonable remuneration, the Court may direct such further sum to be paid to the person summoned as appears to be necessary on that account, and, in case of default in payment, may order such sum to be levied by attachment and sale of the movable property of the party obtaining the summons; or the Court may discharge the person summoned, without requiring him to give evidence; or may both order such levy and discharge such person as aforesaid. ( (2 2) ) Expenses Expenses of of witnesses witnesses detained detained more to detain the person summoned for a longer period than one day, the Court may, from time to time, order the party at whose instance he was summoned to pay into Court such sum as is sufficient to defray the expenses of his detention for such further period, and, in default of such deposit being made, may order such sum to be levied by attachment and sale of the movable property of such party; or the Court may discharge the person summoned without requiring him to give evidence; or may both order such levy and discharge such person as aforesaid. where insufficient insufficient sum sum paid paid in in--- --- (1) Where it appears to the Court or to more than than one one day day. . Where it is necessary 8
BRIEF HISTORY OF RULES MAKING The rules regarding scale of expenses were framed by the Chief Court (now the Peshawar High Court) under under Section Section 652 652 of of the Procedure Procedure 1882 1882 and are deemed to be made under under Section Section 157 157 of of the the Code 1908 1908, but these scales of expenses have not been revised and they are absolutely outdated. the Code Code of of Civil Civil Code of of Civil Civil Procedure, Procedure, 9
BRIEF HISTORY OF RULES MAKING Similarly, the Lahore High Court, Lahore also made rules to regulate the scale of expenses available in Vol 5 5- -C, C, but these rules are also obsolete. Resultantly, on one hand vacuum exists due to outdated rules and on the other hand the Courts are not exercising their discretion in accordance with the spirit of Order continuous loss is accruing to government exchequer. Thus, the above narrated circumstances necessitate that rules regulating the scale of expenses under Order XVI Rule 2(3) may be revised. Vol- -I, I, Chapter, Chapter, Order XVI XVI Rule Rule 2 2 and 10
Important Provision of the Rules provided in Chapter 5 Important Provision of the Rules provided in Chapter 5- -C Vol Ethics of Civil Practice, High Court Rules and Orders. Ethics of Civil Practice, High Court Rules and Orders. C Vol- -I of I of Rule Rule- - 6 6. . Scale scale of expenses to be allowed to witnesses. Subordinate Courts shall be guided by such rules as may be made by Competent Authority. The Rules passed in connection with the scale of expenses are given in Appendix I to this Chapter. Rule Rule- - 8 8. . Court Court certificate certificate in in case case of of Government Government servants which an officer of Government is summoned to give evidence, the Court should give him a certificate in the prescribed form A given in Appendix II of Chapter-5 Vol-I, specifying the dates on which the officer was required to attend and the amount if any, paid to him by the Court. This certificate will be attached by the officer concerned to any travelling allowance bill which he may submit under the rule quoted above. Scale of of Expenses Expenses: : Order XVI, Rule 2(3), provides that in fixing the servants: : In all cases in 11
Rule Rule- - 9 9. . Expenses Expenses of of process server, who is called upon in ex-parte proceedings to prove service of a summons by affidavit or statement in Court, is not entitled to any subsistence or other allowance for attendance. Such attendance must be regarded as the discharge of one of the ordinary duties of his office. process servers servers: : A process- 12
RATES The following Rules have been framed by the High Court under Order XVI Rule 2(3) of the Code of Civil Procedure for the guidance of the Courts. 1. 1. The remuneration to be paid to the witnesses attending the Civil Courts of the Punjab will be not only for the actual period of attendance but also for any reasonable time spent in the journey to and from the place of sitting, the mode of conveyance available being taken into consideration. 2. 2. The Presiding Officer of each Court will, keeping in view the status of the witness, fix the remuneration exclusive of the bona fide travelling expenses. The Government servants attending the Courts in private capacity will be allowed remuneration at the rates admissible in each case under the relevant Service Rules. 13
RATES 3 3. . cover the actual costs of the journey by means of conveyance considered by the Court to be suitable to the person summoned. In estimating travelling expenses, the amount allowed should 4 4. . in rule 12 of the Auditors Service Rules, 1932), chartered accountants (As defined in Chartered Accountants Ordinance, 1961 (X of 1961), Doctors and Engineers, attending the Civil Courts for giving expert evidence, shall be paid fees ranging between rupees two hundred and rupees one thousand according to the professional standing of the witness, for each day in attendance or travelling in addition to the expenses for travelling. The professionals e.g lawyers, registered accountants (as defined 14
Tendering Tendering of of witness Procedure demands that witness travelling expenses shall be tendered to witness in advance at the time of serving the summon. Unfortunately, the Courts have abandoned this practice and the witnesses repeatedly appear in Courts on their own expenses and deposited diet money provided to them after completion of their statement is inadequate to meet the expenses of their single appearance in the Court let alone the repeated appearances. The Lahore High Court has amended Order XVI Rule 3 in the year 1918 and added sub-clause (2) with two exceptions which are as under: ( (2 2) ) When the person is a Government servant the sum so paid into Court shall be credited to Government. witness expenses expenses: :Order XVI Rule 3 of the Code of Civil 15
Exception Exception ( (1 1) )In case in which Government servants have to give evidence at a Court situate not more than five miles from their headquarters, actual travelling expenses incurred by them may, when the Court considers it necessary, be paid to them. Exception Exception ( (2 2) ) A Government servant, whose salary does not exceed Rs. 10 per mensem, may receive his expenses from the Court The above amendment of the Lahore High Court is in line with Article 1133 of Civil Service Regulation 16
KPK SERVICE RULES REGARDING THE EXPENSES OF WITNESSES In the province of KPK, no such exception has been added to Order Order XVI XVI Rule Rule 3 3 of the Code, however, Rule Pakhtunkhwa Travelling Allowance Rules, 1980 requires that if the witness is attending the Court which situate within 16 km (10 miles) of his headquarter or within municipal limit of the town, the court may in its discretion can pay actual travelling expense to the witness. A civil servant if attending the Court is situated in Pakistan and he draws the travelling allowance for attending the Court, he shall not accept any fees which is deposited with the Court and such expenses shall be credited to the Government. The rule is as under: - Rule 4 4. .9 9 of Khyber 17
4 4. .9 9. . ( (1 1) ) A A civil (a) (a) in a civil or criminal case, a case before a court martial or a departmental enquiry held by a properly constituted authority in Pakistan or before a court in a merged State or in foreign territory, provided the facts as to which he is to give evidence have come to his knowledge in the discharge of his public duties; or (b) (b) Before a committee appointed by Government; may draw travelling allowance as for a journey on tour attaching to his bill a certificate of attendance given by the Court or other authority which summoned him: Provided that if the court by which he is summoned is situated within 16 kilometers of his headquarters or within municipal limits of the town where his headquarters are located, whichever may be farther, he may, if not in receipt of any permanent travelling allowance or conveyance allowance, accept such payment of actual travelling expenses as the Court may make. civil servant servant summoned summoned to to give give evidence evidence: : 18
( (2 2) ) When When a a civil rule rule ( (1 1) ). . civil servant servant draws draws travelling travelling allowance allowance under under sub sub- - (i) (i) if the court or authority by which he was summoned be in Pakistan, he may not accept any payment of his expense in connection with the journey from such court or authority, and any fees which may be deposited in the court or with the authority for the travelling and subsistence allowance of the witness must be credited to Government; 19
Two Two situations situations emerge emerge from from the the rules rules referred referred above above; ; when the civil servant attends the Court situated within radius of 16 km (10 miles) or within the local limits of the municipal town, whichever is farther, he is not entitled to draw travelling allowance, however the Court can in it s discretion compensate the witness with the actual expenses; when the civil servant attends the Court in Pakistan and draws travelling allowance, the travelling expense and subsistence allowance deposited with the Court must be credited to Government treasury. 20
EXPENSES OF WITNESSES IN CRIMINAL CASES EXPENSES OF WITNESSES IN CRIMINAL CASES The governing section to regulate the expenses of witnesses in criminal cases is Section Section 544 544 Cr Cr. . P P. .C C which states as under Subject to any rules made by the Provincial Government any criminal Court may, if it thinks fit, order payment, on the part of Government, of the reasonable expenses of any complainant or witness attending for the purposes of any inquiry, trial, or other proceeding before such Court. Besides above section, the magistrate under Section empowered to call upon the complainant or accused to deposit the reasonable expenses of the witness in the Court. However the discretion of Magistrate is subject to the rules framed by provincial government under Section Section 244 244 Cr Cr. .P P. .C C is also Section 544 544 Cr Cr. .P P. .C C 21
RULES FRAMED BY PROVINCIAL GOVERNMENT RULES FRAMED BY PROVINCIAL GOVERNMENT As required by Section the Provincial Government in the British era and are available in Lahore High Court Rules & Order Vol Chapter Chapter- -9 9 and and in in Volume Volume- -I I Section Section XV of The Chief Court of the Punjab`(Now Peshawar High Court). Section 544 544 Cr Cr. .P P. .C C such rules were framed by Vol- -III, III, Part Part- -A, A, XV of the Rules & Order 22
RATES OF REMUNERATION TO BE PAID TO WITNESSES ATTENDING THE CIVIL COURTS Category Category of of officer officer Travelling expense Travelling expense By By Air Air Daily Daily allowance allowance By By Road Road At admissible TA rates. (For example currently Rs.10/km for personal car/Taxi, Rs. 4/km for Motorcycle/Scooter By By Railway Railway Actual railway fare of the accommodation of the highest class by whatever name be it called (a) Where night is not involved and absence from headquarter (working place) exceeds six hours then half daily as per rates prescribed by government under Rule 2.36 of KPK Travelling Allowance Rules, 1980. (b) Where stay of night is involved then in accordance with the rates prescribed by Government under Rule 2.36 of Daily Allowance prescribe in Rule 2.36 of KPK Travelling Allowance Rules, 1980 Category Category- -I (BPS above) above) I (BPS- -17 & 17 & Actual air fare At admissible TA rates.(Currently Rs.4/km/diem in case of Motorcycle/Scooter and Rs.2.50 in case of public transport) At admissible TA rates (Currently Rs,2.5/km/diem in case of public transport) Actual Railway fare of First-Class Sleeper accommodation Ditto Category Category- -II (BPS 16) 16) II (BPS- -11 to 11 to Not admissible Actual Railway fare of First-Class Sitter accommodation (Economy Class) Ditto Category Category- -III (BPS 10) 10) III (BPS- -3 to 3 to Not admissible 23
ORDINARY WITNESS ORDINARY WITNESS: Is a person who gives evidence based on their first-hand knowledge of events relevant to the case. Following prescribe rates for ordinary witness will be applicable only when the party intends to summon the witness through Court. The expenses of ordinary witness will be as under: Daily allowance Expenses if detained more than one day Travelling expense By Air Actual air fare on production of ticket where the travelling distance between the Court and place of residence of witness is more than 12 hours By Railway Actual railway fare on production of ticket or rate as notified on the website of Pakistan Railway By Road (a) In case of public transport, the witness will be reimbursed in full, subject to production of ticket/receipt (b) In case of personal car Rs.5/km. (c) In case of motorcycle Rs.2/km Not less than minimum rate of daily wages prescribes by government of Khyber Pakhtunkhwa from time to time under Khyber Pakhtunkhwa Minimum Wages, Act, 2013. The Court while fixing daily allowance of ordinary witness shall take into account the status of witness; i.e. business man, shopkeeper, policeman, army personnel, etc In case of a night stay the witness is entitle to actual expense of a night stay in a hotel on production of hotel s bill. However, it shall not be more than Rs. 5000/- NOTE: The mean of transport to be considered in case of ordinary witness shall be in accordance with the life style and status of the witness 24
THANKS THANKS 25
