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TMI Blog1958 (11) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... d before the Court, the-landlord did not. The case was accordingly kept by and was never called although he was waiting in the verandah of the court-hall till 5 p. m. that day. His story was that the court premises were crowded beyond capacity on that date on account of a very sensational trial which was going on in the Court of the Sessions Judge upstairs, with the result that he had to wait in the verandah of the court-hall of the learned Munsiff before whom the proceedings relating to this case were going on. It was only later that he came to know that an ex parte order for eviction had been made against him. 2. On this application, notices were ordered to the landlord. After the landlord has notified about this application and he filed his statement of objections, in which he repudiated the truth of the allegations made by the tenant, the case was posted on 23-11- 1956, for evidence, to 2-2-1957. On 2-2-1957, the case was again adjourned to 16-3-1957. On 16-3- 1957, the learned Munsiff made an order directing the parties to produce 'evidence by affidavits,' the meaning of which, as I understand it, is that the parties had to prove their allegations by the production o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code of Civil Procedure. But. Section 30 of the Code of Civil Procedure, enables a Court, subject to such conditions and limitations as may be prescribed, either on its own motion or on the application of any party, to order a fact to be proved by affidavit. Those conditions and limitations referred to in Section 30 are these prescribed by Order 19 of the Code of Civil Procedure. Rule 1 of Order 19 provides that: "Any Court may at any time for sufficient reason order that any 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: Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit." Rule 2 of that Order reads: "(1) Upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent. (2) Such attendance shall he in Court, unless the deponent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e have any application to the present case and whether the order made by the learned Munsiff directing that the parties should prove their case by the production of affidavits could have properly been made under either of these two rules. 9. It would, I think, be convenient to deal with Rule 2 of Order 19 in the first instance. That rule provides that evidence may be given by affidavits upon any application. The question sometimes did arise as to whether the application referred to in Rule 2 is merely an interlocutory application and whether it also includes a substantive application which itself initiated proceedings in the case. 10. In Federal India Assurance Co., Ltd. v, Anandrao Pandnrangrao, MANU/NA/0095/1943MANU/NA/0095/1943, an ex parte decree was set aside on an affidavit produced by the defendant. That order was challenged before the High Court and the argument addressed on behalf of the plaintiff was that the affidavit produced by the defendant and on which the Court below relied could not he regarded as evidence within the meaning of that expression contained in Section 3 of the Evidence Act. It was also contended that the provisions of Rule 2 of Order 19 of the Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ature. He accordingly reversed the order made by the appellate Court setting aside the abatement. 11. The question again came up before a Bench of the High Court of Nagpur in Kanhaiyalal S. Dadlani v. Meghraj Ramkaranji, AIR 1954 Nan 260. The order that was brought up in revision before that High Court was one restoring to file a small cause suit which had been dismissed for default. That order had been made by the Court below on the strength of an affidavit which had been produced by the plaintiff whose suit was dismissed. The contention urged by the defendant in the revision petition was that the affidavit was improperly regarded as evidence by the Court below and that since the provisions of Rule 2 of Order 19 of the Code of Civil Procedure applied, as it had been held in the two earlier decisions of that Court, only to interlocutory applications and not to substantive applications, the order under revision was unsustainable. The learned Judges who heard that revision petition were of the view that the two earlier decisions of their Court had been wrongly decided. Those earlier decisions were accordingly overruled. The first principle which emerges from their decision is that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded to point out that although as provided by Section 1 of the Evidence Act that Act is not applicable to the affidavits presented to Courts, it does not mean that any affidavit of any person can go in as evidence proprio vigor . without necessity for him to enter the witness box. 15. The view taken by their Lordships in the High Court of Nagpur in AIR 1954 Nag 260, was based on that taken by Gulam Hasan, J., in Shib Sahai v. Tika, MANU/OU/0108/1942MANU/OU/0108/1942. That learned Judge, in the course of his Judgment, while referring to the provisions of Rule 1 of Order 19 of the Code of Civil Procedure, observed as follows: "A perusal of this rule leaves no doubt that it is open to a Court on sufficient grounds to allow proof of facts by means of affidavits, but if the production of the declarant of the affidavit is required in good faith for cross-examination by any party, the court shall not use such affidavit in support of the facts alleged therein without the production of the declarant. Rule 2 of Order 19, Civil P. C., puts the matter further beyond doubt. This rule is to the effect that upon any application evidence may be given by affidavit, but the Court may, at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is as laid down by Gulam Hasan J., in the last mentioned case." The two earlier Nagpur rulings which, according to them, had placed an unduly strict interpretation on the provisions of Rules. 1 and 2 of Order 19 of the Code of Civil Procedure, are these reported in and AIR 1953. Nag 135, to which I have already referred. 16. From the above discussion, what emerges is this: Ordinarily, evidence has to be recorded viva voce in court as provided by Rule 4 of Order 18, C. P. C., that procedure may be dispensed with if the parties agree that affidavits should be substituted for the evidence to be so recorded. But in cases in which there is no such agreement and an allegation contained in an affidavit produced by-one party is not controverted by the other, it would be open to the Court to base its decision upon the uncontroverted affidavit. That would be the procedure which it obviously has to adopt under the provisions of Rules. 1 and 2 of Order 19 of the Code of Civil Procedure. Among the decisions of the various High Courts to which 1 have referred, it will be seen that in all these cases in which an affidavit was-regarded as sufficient evidence even in the absence of an agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of applying that Rule to cases in which the parties do not consent that affidavits and affidavits alone should be treated as evidence or in which the statements made in the affidavits produced by one party are controverted by these produced by the other. The present case is one of that kind. 19. In my opinion, it is plain that this was a case to which the provisions of R, 2 of Order 19 of the Coda of Civil Procedure were clearly inapplicable. 20. Then, what remains to be considered is whether the procedure adopted by the Court below can be regarded as one that was permitted by the provisions of Rule 1 of Order 19, although it is clear that the learned Munsiff himself did not state that he was acting under that rule when he directed the parties to produce affidavits. It seems to me that there can be no doubt that Rule 1 of Order 19 of the Code of Civil Procedure was as inapplicable to the present case as it. 2 of that order was. As stated in Rule 1 of Order 19 of the Code of Civil Procedure, it is plain that what the Court is empowered to do under that Rule is to order that any particular fact or facts may be proved by affidavit provided there were sufficient reasons for doing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Those are cases like these referred to in Rule 19 of Order 5. Rules 8 to 20 of Order 11 Rule 3 of Order 32, Rules 1 and 5 of Order 38 and Rule 1 of Order 39 of the Code of Civil Procedure. These are cases in which, the production of an affidavit without more would enable the Court to act under the provisions I have referred to. Ordinarily, except in such cases, if is obvious, that evidence has to be recorded in the manner specified in Rule 4 of Order 18 unless an order to the contrary is properly made under Rule 1 of Order 19 of the Code of Civil Procedure. As I have mentioned, in order to justify an order to that effect under that Rule, there must be sufficient reason. It is clear that if would be a sufficient reason to make an order of that kind in uncontested proceedings like these which were the subject-matter of the decisions in AIR 1954 Nag 260 and in. That would also be the position where the opposite party does not dispute or is not interested in disputing the facts sought to be proved by affidavit. That is the practice which is also being followed in uncontested probate proceedings and other uncontested proceedings under the Indian Succession Act. But, if a case is not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nary way. 26. That being so it seems to me that the order made in this case directing the parties to produce affidavits in support of their cases was a clear misuse of the provisions of Order 19 of the Code of Civil Procedure. The order under revision which is the outcome of a patently illegal procedure adopted by the learned Munsiff is therefore liable to be set aside. 27. But, it was agreed in this Court by Mr. Narasimha Murthy and Mr. Chandriab, advocates appearing for the parties before me, that this revision petition may be disposed of on the affidavits produced by the parties in the Court below and on the basis of these affidavits alone. It is clear that an agreement to dispense with the examination of witnesses and that a case should be decided on affidavits must further provide that such a decision should be based not only on proof based on affidavits but on affidavits alone. Such is the agreement which has been reached in this Court between the learned advocates appearing for the parties. I have, therefore, proceeded to decide this revision petition in that manner instead of remitting this case to the Court below which would merely involve unnecessary waste of time. 28. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on behalf of the tenant. The reasons given by him for not accepting these affidavits cannot stand scrutiny. The only ground on which he discarded the testimony of one of them was that he was not a witness in the case in which the tenant was a party and that, it was improbable that he could have been watching the Sessions trial, for doing which he was present there, in the verandah of the Munsiffs Court, whereas the sessions trial was actually going on upstairs. It is clear from, the affidavits produced that that sessions case had become sensational and that a large number of persons were attempting to gain entry into the Court-Hall where the trial was being conducted, although the Police had made arrangements to restrict the admission into that Court-Hall. That being so, it is clear that all these who wished to be present in the hall where the sessions trial was going on were not able to gain admission into it. There is nothing strange or improbable in Thimmiah having waited downstairs in the hope of getting admission into the Court-Hall sometime or other during the day. Neither Thimtmiah nor Narayanappa the other deponent was ever summoned by the landlord for cross-examination. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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