V.A Mohta, J.:— Points of some interest arise in this appeal by the original defendant against an ex parte decree for Rs. 3,84,375/- with future interest at 6 per cent per annum passed by the Joint Civil Judge, Senior Division Nagpur, on 21st Sept. 1978. The respondent original plaintiff had filed a suit for damages for breach of contract in refusing to take delivery of the Manganese Ore purchased by the defendant from the plaintiff vide contract dated 5th March, 1968. This suit filed in 1969 was fixed for evidence on 10th April, 1978. In the early hours, it was called when the plaintiff's representative, witnesses and the counsel were present. None was present for the defendant. As a result, the following order came to be passed:—
“Plaintiff and his witnesses present. Defendant and his counsel absent. Case is of 1969. It is very old case. Hence I proceed ex parte against defendant. Plaintiff to prove the claim by affidavits.”
The plaintiff filed an affidavit of its Chief Sales Officer Sri Jagirdar and the following judgment came to be delivered immediately thereafter.
“As directed plaintiff filed affidavit of Shri Anand Dinkar Jahagirdar at Exh. 104. Relying on the plaint allegation, which are supported by affidavit and various documents filed in record, I decree the plaintiffs' claim in full with costs and future interest.
Plaintiff to recover Rs. 3,84,375/- with future interest at 6 per cent per annum from date of suit till realisation with costs from defendant. Decree be drawn.”
At 12.50 a.m the defendant's counsel filed an application for setting aside order’ proceeding ex parte. Upon that application, the trial Court passed the following order.
“As judgment is delivered, this application is rejected.”
It is a common ground that before filing this appeal, an application under O. 9, R. 13, Civil Procedure Code, for setting aside ex parte decree was filed before the trial Court on 20th Oct. 1978. In this appeal filed on 6th March this Court directed disposal of the application before the trial Court within a period of two months. After hearing parties, the said application came to be dismissed on 12th October, 1979 (MJC No. 263 of 1978). The defendant did not challenge the said order.
2. Can a grievance about proceeding ex parte be made again in this appeal is the first point. Now order rejecting an application under O. 9, R. 13 is appealable under Section 104 read with O. 43, R. 1(d), Civil Procedure Code. Undoubtedly in appeal under Section 96 against the decree this grievance can be made. Section 105, Civil Procedure Code, makes this position clear. Crux of the controversy is whether the same question can be allowed to be reopened in a case where other remedy has been availed of, the decision has gone against the defendant and the said decision has become final. In our view, this point must be answered against the defendant. Well recognised public policy of avoiding conflicting decisions on the same point is the reason behind this conclusion. Two High Courts (i) in the case of Badvel Chinna Asethu v. Vettipalli Kesavayya, AIR 1920 Mad 962 and (ii) Munassar Bin v. Fatima Begum, AIR 1975 A.P 366, have taken the same view and it has our respectful concurrence.
3. Second point urged is that no court in exercise of power under O. 19, R. I, Civil Procedure Code, has jurisdiction to order proof of whole suit by affidavit irrespective of the nature of the suit and/or controversy and even when the suit is not contested. It seems to us that the proposition is too spacious to be accepted. Let us examine the salient features of our procedural laws on the subject. O. 18, Civil Procedure Code, deals with the subject of hearing of the suit and examination of witnesses and Rule 4 makes it mandatory to take the evidence of a witness orally in open court in the presence and under the personal superintendence of the Judge. Evidence Act does not apply to affidavit produced in any Court (S. 1) and defines the term “evidence” (S. 3). Now, these two basic features of our two procedural laws, are not without permissible exceptions. Section 30(c), Civil Procedure Code, itself provides for prescribing conditions and limitations for enabling Court to order proof of any fact by affidavit in appropriate cases. On scanning orders and Rules of Civil Procedure Code, instances of express permission to act merely, on affidavits can be sorted out e.g o. 5, r. 19, o. 11 rules 5 to 20, o. 32 r. 5, o. 38 rules 1 & 5. order 39 rules 1 and 2.19 generally deal with the subject of “Affidavits” and the manner and circumstances in which departure from O. 18 R. 4 can be made by any Court. O. 19, R. 1 is a general power and R. 2 is restricted to “any application”. The controversy as to what does the term “any application” mean need not detain us, as it does not directly arise in the present matter, though our view on the question is “any” means “any” and there is no scope to restrict the generality the word so unambiguously points out. Reverting to R. 1, the terminology “fact or facts” used therein may be noticed. Now in a given case result of the whole suit may depend upon proof of a fact only. If that be the position, does it sound logical that proof of such a fact by affidavit is impermissible only because thereby the whole suit can be decided, Would then the position in law change because plural facts are required to be proved to decide the controversy in a suit. Moreover, specific use of word “facts” in particular indicates that no restriction on the number of facts is to be read and in an appropriate case all fact or facts upon which suit is based can be proved by affidavit/affidavits. Holding otherwise would be too unrealistic and too technical a view of the law of procedure resulting into great waste of public time and money and would throw unnecessary burden on our already over burdened legal machinery. This is not to suggest even remotely that resort to this provision can be readily made even if nature of controversy appropriately calls for following the normal rule contained in O. 18, R. 4. Needless to mention that ex parte matters would stand on somewhat different pedestal and in relation to them discretion under O. 19, R. 1 can be more freely exercised. There is thus no lack of jurisdiction in ordering proof by affidavit. All really depends upon facts and circumstances of each case.
4. Heavy reliance is placed by Shri Manohar for the appellant upon high authority of Bhagwati, J. (as he then was) in the case Zabu Khima v. Amardas, AIR 1967 Guj. 214. That case arose out of a contentious application for grant of letters of administration under the Succession Act which has to be tried as a regular suit in terms of Section 295 of the said Act. Though the practice of deciding such contentious cases merely on the basis of affidavits of both parties was deprecated, the trial by such method was not held to be vitiated by any illegality. That decision far from supporting the appellant lays down clearly that “there can be no doubt that when a case is non-contentious one, the Judge hearing an application for probate or letters of administration can act on affidavits.” Case of B.N Munibasappa v. Gurusiddaraja Desikendra Swamigal, AIR 1959 Mys. 139 arose out of a civil revision against an order passed in a contested application for setting aside ex parte order under the Mysore House Rent and Accommodation Control Act. The Munsif directed both the parties to produce evidence by affidavits and decided the matter merely on the affidavits of both parties. Parties had not consented to that course. It is in this background that the following observations on which reliance was placed have to be viewed. (Para 21).
“The provisions of this Rule are analogous to the provisions of O. 37, R. 1-B of the English Rules of the Supreme Court. R. 1 of O. 19 of the Civil Procedure Code is not a provision under which the Court may direct that party may prove the whole of his case by the production of affidavits. What it provides is that a particular fact or facts may be proved by affidavit provided there were sufficient reasons for doing so.
Now, what the learned Munsif did in this case was to make an order, the effect of which was that all the facts which had to be proved by the parties in the proceeding before him should be proved by affidavits instead of their being proved by evidence produced in the ordinary way. It is clear that an order like that could never be made except by a misapplication of R. 1 of O. 19”.
Now these observations will have to be read in the context indicated above and not out of it. We do not feel that the Mysore High Court has stated the proposition as widely as is canvassed before us. If it does, we respectfully disagree. It is pertinent to note that ultimately the said revision came to be decided only on the basis of affidavits filed in the trial Court but by consent of both parties.
5. Last point relates to the question of fact — whether sufficient material exists on record to sustain the decree. To that our answer is in the negative. Our final order is the remand to the trial Judge for fresh trial. Here are our reasons: Damages are claimed on the basis that there was a completed contract, breach of which was committed on 23rd Jan. 1969 when notice was given by the plaintiff and the rate prevailing on that day was about Rs. 100/- per tonne, contracted rate being Rs. 125/-. All these contentions were denied by the defendant and several issues were framed. Plaint runs into 7 pages and several documents are filed on record. Without specifically referring to any of them only a small affidavit of Shri Jahagirdar was filed and within minutes the learned Judge delivered a short judgment. It is apparent that he has not applied his mind to the several facets that ex facie arise and the voluminous documents on record (assuming they are proved). No documents are explained with reference to context by affidavit. Agreed dates of delivery were March/April 1968 for 7500 tonnes and June/July 1968 for the balance of 7500 tonnes. Rates prevailing on those dates are not on record. It is not explained whether there was any extension of time of delivery and if yes, when and how. Plaintiff seems to have insisted upon a security deposit of Rs. 25000/- before effecting delivery to which defendant seems to have agreed. What happened to that aspect is not on record. One letter dated 22nd May 1968 alleged to have been written by the defendant does refer to extension, but office notes of the plaintiff insist on security deposit before effecting delivery. Settled law is that damages have to be assessed on the basis of difference between contracted price and the rates prevailing on the day of breach (Section 73 of the Contract Act or section 56 of the Sale of Goods Act). Developments after 21st May, 1968 are not on the record and the picture is not clear at all.
6. Evidence thus is wholly insufficient to sustain judgment and decree which seems to have been passed only because the defendant was ex parte. To dismiss the suit for want of evidence in appeal would be unfair under the circumstances and the only other course left is to remand the matter for fresh trial and fresh decision after application of mind to all relevant factors. Hence the following order:—
The Judgment and decree passed by the Trial Court is set aside and the suit is remanded to the trial Court for fresh trial. No order as to costs.
The trial Court will give opportunity to both parties to lead evidence and decide the suit afresh on merits. Parties are directed to appear before the trial Court on 14th Feb. 1986 on which date the case shall be fixed for evidence of parties.
7. Needless to mention that the trial Court will give top priority to this old matter. Record and proceedings received from the trial Court be sent back so as to reach the trial Court on or before 14th February, 1986.
Order accordingly.