9911796707
TMI Blog1989 (11) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... 25-3-81 learned District Judge, Jaipur City, Jaipur, passed the order that the case referred to in the list pending with the Additional Munsiff No. 2, Jaipur City, should be transferred to Additional Munsif and Judicial Magistrate No. 1, Jaipur City. In pursuance of the said order this case was also transferred in the Court of Additional Munsiff No. 1, Jaipur City, Jaipur. The Reader of the Court signed the summons which was to be issued on 28th April 1981 and the date was fixed on 4th May 1981. Summonses were entered in the process register at SI. No. 446 on 30-4-81. Without the order of the Court Dasti. summonses were given to the plaintiff for getting the summons served on the defendant after taking the assistance of the process server. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a period of two months; decree for the payment of arrears of rent was also passed. 3. Mr. Lodha appearing on behalf of the petitioner submitted that the judgment and the decree passed by the Court below should be treated as non-existent/non est. He submits that any decree passed by the Court having no jurisdiction to try the case is a nullity. The second contention of Mr. Lodha is that the decree is also a nullity as there is no material on record on the basis of which the Court could have passed the decree. To elaborate this position Mr. Lodha submitted that the affidavits filed by the non-petitioner-plaintiff cannot be admitted in evidence and they cannot be read as evidence. 4. The next contention of Mr. Lodha is that in the ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect-matter of the action strikes at the very authority of the Court to pass any decree and such defect cannot be cured even by consent of the parties. 9. Mr. Lodha submits that on the date of presentation of the suit the Court of Additional Munsiff No. 2, Jaipur City, had no jurisdiction to entertain the suit or to accept the suit even for the purpose of presentation. He submits that the admitted position is that the suit was presented to the Court having no jurisdiction to entertain the suit, as such the decree passed on such a suit is a nullity. 10. In the case of Hira Lal v. Kalinath 1962 SC 199. Hon'ble Supreme Court held that it is well settled that the objection as to local jurisdiction of the Court does not stand on the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustice. It will not be out of place that Clause (3) of Section 21 further provides that no objection as to the competence of the executing Court with reference to the local limits of its local jurisdiction shall be allowed by any appellate or revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity. This clause further provides that the territorial objection can be raised relating to the matter of execution before the executing Court, but the objection cannot be raised about the passing of the decree which is to be executed. Section 21A further prohibits the litigation on the ground of territorial jurisdiction. Apart from that Section 24, Clause (5) as amended vide Amending Act of 1976 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll and has not filed the written statements, as such R, 1 applies and the plaintiff has a right to begin the case, may it be an ex parte proceeding. The next stage is under Rule 2 of Order 18. The party having a right to begin shall state his case and produce his evidence in respect of his issues which he is bound to prove. Thus, Rule 2 provides that even in ex parte cases the plaintiff has to produce the evidence to prove his case. There may be exception to this rule , and the exception may be carved out by the Court, by passing any order which may be considered just and proper in the circumstances of the case. In the instant case, no such order has been passed by the Court and it was obligatory on the part of the plaintiff to produce evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable. 'Thus, under Order 19 Rule 1, the condition precedent is that the Court must permit the person who wants to produce affidavit of the witnesses as evidence. Court can only permit where there are sufficient grounds for its satisfaction to do so. In the ordinary course, an affidavit cannot be used as evidence to prove a particular fact. It can only be used as an admission of a party under Sections 18 to 21 of the Evidence Act can be used against the party making such admission. However, it cannot be read as evidence and affidavit cannot be treated as evidence under section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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