1. This application for revision made by the first defendant against an order restoring to file a small cause suit was before a learned single Judge who referred it to a Bench because he doubted the correctness of the decision of Bobde J. (as he then was) in — ‘Federal India Assurance Co. Ltd. v. Anandrao’, AIR 1944 Nag 161 (A).
2. The facts are simple. The non-applicant Seth Meghraj filed this suit against the first applicant for arrears of rent of a house or for damages for use and occupation. Later he joined one Jindani as defendant. It appears that the original tenant was Jindani and the present applicant was let in as a sub-tenant. With these matters, however, we are not concerned. The case was fixed for final disposal on 9th October 1951, but that day was declared a holiday and the suit was ordered to be fixed by a public notice on the following day. On that day the plaintiff was absent and it was found that he had not paid the publication charges for substituted service on Jindani nor were any witnesses summoned or present. The Judge, therefore, dismissed the suit. On the following day (11th October 1951) the plaintiff applied for restoration of the suit and in support of his application, filed an affidavit. The application for restoration was fixed for hearing on 9th August 1952, but the first defendant was absent. He sent a medical certificate but the learned Judge declined to adjourn the case, holding that the certificate was vague. Relying upon the affidavit, he restored the suit observing as follows:
“Relying on the applicant's affidavit, which has not been denied by means of a counter-affidavit or any evidence, I allow the application and restore the suit to file.”
3. It is contended on the authority of — ‘Federal India Assurance Co. v. Anandrao (A)’, (cit. sup.), that the Judge erred in using the affidavit as evidence without examining the plaintiff. On merits too, it is contended that the Judge ought to have given the defendant a chance to appear and not refused to adjourn the case.
4. In view of the doubt expressed, it becomes necessary to examine the dictum of Bobde J. in the case cited. It may be pointed out that Deo J. has followed it in — ‘Gopikabai v. Narayan Govinda’, AIR 1953 Nag 135 (B). Deo J. is also of the opinion that affidavits cannot be received as evidence in support of applications which the learned Judge describes as ‘substantive applications’. According to these two rulings, while affidavits may be received in evidence for interlocutory matters, they cannot be used as evidence in substantive matters like setting aside of abatements, restoration of suits, application for leave to sue in ‘forma pauperis’, etc.
5. It is no doubt true that Section 1 of the Evidence Act which applies the evidence to all judicial proceedings in or before any Court does not extend it to affidavits presented to any Court or officer. But that is only meant to exclude the rules of evidence as laid down in the Act. The law on affidavits is not to be found in the Evidence Act but in the Code of Civil Procedure. Section 30 of the Code which invests Civil Courts with certain powers says that the Court may, at any time, either of its own motion or on the application of any party, order any fact to be proved by an affidavit. This clearly shows that the Court can treat affidavits as proof of the facts contained therein, the prior requisite, of course, being there. The rules are to be found in O. 19. That Order consists of three rules. With the third rule we are not concerned because it provides for matters to which the affidavits have to be confined. The first two rules read as follows:
“1. 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.
2.(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 be in Court, unless the deponent is exempted from personal appearance in Court, or the Court ‘otherwise’ directs.”
6. The first question is whether the Court can read the affidavit already filed by a party as evidence in the case. According to Bobde J., an affidavit is not evidence within the Evidence Act and it cannot be read as evidence unless the Court makes an order under O. 19, R. 1 of the CPC, that any particular fact be proved by an affidavit. The next question is whether the second rule of the Order does not apply to ‘substantive applications’ which initiate proceedings but only to interlocutory applications which are incidental to such proceedings and are made while they are pending. This interpretation was accepted by Deo J. in the second case. The learned Judge points out that the Rules and Orders of the High Court do not lay down that in support of applications made under O. 22, affidavits shall be filed. The learned Judge, therefore, observes:
“If affidavit is not evidence under law, the question is whether the practice of requiring such affidavits makes it an evidence. Section 1 of the Evidence Act, excludes the application of the Act to affidavits presented to any Court or officer. What ‘evidence’ means and includes is described in S. 3 of the Act, but affidavit is not within that description. (Sic.).”
7. The learned Judge then observes that the Evidence Act being a consolidatory enactment, one has to turn either to the Code of Civil Procedure or the Rules of the High Court. He then refers to S. 30 and O. 19 and observes that the practice of relying upon affidavits without a proper order under O. 19 is incorrect. He also interprets R. 2 as applicable only to interlocutory applications but not to substantive applications.
8. The law laid down in Section 30 and O. 19 of the CPC is merely enabling. It enables the Court to order or to read an affidavit as evidence. The first rule of O. 19, is a general one. It is based on O. 37, R. 1 of the Rules of the Supreme Court in England. The second rule corresponds to Order 38, R. 1 of the Rules of the Supreme Court. In England, of course, that rule ordinarily applies to interlocutory applications, though its general purport was declined to cut down by implied exceptions by Chitty J. in — ‘In re Fitzwater’, (1883) 52 LJ Ch 83 at p. 85 (C). The words in the English rule are: “upon any motion, petition or summons”, and Chitty J. was disinclined to exclude anything which fell properly within those words.
9. The words of the second rule are: “upon any application”. No distinction has been made between ‘substantive applications’ and ‘interlocutory applications’ and, with all due respect to the two learned single Judges, such implied exceptions cannot be read into the generality of the words employed. ‘Any application’ means ‘any application’ and to say that particular kinds of applications are only meant but not others is not to interpret the terms used but to legislate on the subject. ‘Maledicta expositio quae corrumpit textum’.
10. It appears that in Sarkar's Indian Evidence Act the commentator had made this distinction based upon English law even in Indian Law but without authority in support of it. The distinction was accepted by Bobde J. in this Court and the dictum of the learned Judge was affirmed by Deo J. The distinction between substantive and interlocutory applications in defining the term ‘any application’ in the second rule of O. 19 is without any foundation. The rule is applicable to any application which is made to the Court, irrespective of its nature. The Code itself does not define the word ‘application’ nor does it make any distinction between one application and another. We respectfully dissent from the view expressed in these two cases and overrule them in so far as they seek to make implied exceptions in the second rule of O. 19 of the Code. This disposes of the second question.
11. We next turn to the first question whether affidavits are evidence and can be relied upon by the Court in proof of facts. Section 30 and O. 19 do intend that the Court should have the power to receive them as evidence and that really settles the matter. The question is whether an order or an application is the ‘sine qua non’ before the Court can act upon an affidavit.
12. Opinion on this point is divergent in India. We have referred to the two decisions of single Judges of this Court already. They purport to follow — ‘Gooru Narayana v. Lakshmayya’, AIR 1939 Mad 927 (D). In that case an application for permission to sue as a pauper was made and to oppose the application two affidavits were filed from two villagers (strangers to the suit) stating that the petitioner had raised crops in the previous year of considerable value. ‘The plaintiff required the attendance of the deponents for cross-examination’. The District Judge did not agree and proceeded to act upon the affidavits. Burn J., in an order composed of a few lines, held that the District Judge ought to have summoned the witnesses and observed that affidavits cannot properly be acted upon unless both parties agree to have them treated as evidence.
13. The head-note in the All India Reporter does not indicate that there was a request to summon the deponents for cross-examination. It reproduces the latter part only of the observations of the learned Judge and is somewhat misleading. Bobde J. in relying upon this ruling overlooked the fundamental fact involved in the case. Bobde J. also refers to — ‘Krishna Ayyar v. Madhava Panikkar’, AIR 1921 Mad 381 (E), which lays down that an affidavit is not ordinarily evidence in the case unless O. 19 is complied with. That observation does not advance the matter at all.
14. In — ‘Marneedi Satyam v. Venkataswami’, AIR 1949 Mad 689 (F), Raghava Rao J. lays down that though the Evidence Act is not applicable to affidavits, it does not mean that any affidavit of any person can go in as evidence ‘proprio vigore’ without necessity for him to enter the witness box. The learned Judge observes that affidavits are not evidence except (a) where there is an agreement between the parties that evidence be taken by affidavit, or (b) where under O. 19, R. 1 of the CPC, there is an order of the Court that particular facts may be proved by an affidavit or that the affidavit of any witness may be read at the hearing. The learned Judge merely reproduces O. 19, R. 1. Under certain circumstances, however, the rules themselves contemplate that affidavits can be read as evidence without the deponent entering the witness box.
15. As against this, there are other authorities to which a brief reference may now be made. In — ‘Habib Bux v. Samuel Fitz & Co.’, AIR 1926 All 161 (2) (G), Sulaiman J. (as he then was), in dealing with proof of documents by ‘ex parte’ affidavits, held that if the deponent did not submit to cross-examination, the affidavit should not be read as evidence. He, however, observed:
“Of course, under special circumstances, affidavits under O. 19, may be allowed to be read in evidence, but even then if the opposite party ‘bona fide’ desires the attendance of the witness for cross-examination, he has to appear.”
16. The observations of the learned Judge seem to suggest that affidavits may be received as evidence if the opposite party does not desire the attendance of the deponent for cross-examination or lacks in ‘bona fides’ when he does so.
17. In — ‘Shrinivasa Ayyangar v. Pichumani Ayyangar’, AIR 1933 Mad 164 (H), there was a suit by a minor on the basis of the promissory note. The defendant, though served, did not appear. The learned Judge thereupon admitted an affidavit made by the plaintiff's next friend in proof of the execution of the promissory note and the ‘yadast’ and passed a decree. In revision the defendant raised the objection, not on the merits of the case, but that the affidavit could not be acted upon. Pandalai J. observed as follows:
“In my opinion, the ground urged is without any substance. Order 19, Rule 1 enables any Court to order that any fact may be proved by affidavit and the proviso enables the Court to compel the attendance of the deponent in case of need. In Woodroffe and Ameer Ali it is stated that it is common practice to admit affidavits at the hearing when there is no contention as to the facts. This is what happened in this case and I can see nothing illegal in it…….”
18. In — ‘Jamaluddin Abdul Wahab v. Dr. Abdul Ali Nazim’, I.L.R (1950) All 65 (I), there was an accounts suit. A preliminary decree was passed and an application for a final decree was dismissed in default. An application for restoration was also rejected. The learned Judges, Kaul and Misra JJ., after holding on the authority of — ‘Lachmi Narain v. Balmakund’, AIR 1924 PC 198 (J), that the suit could not be dismissed, dealt with the affidavit filed in support of the application for restoration in these words:
“There is the further consideration that the lower Court wrongly assessed the value of the affidavit which accompanied the application for restoration. The deponent averred in the affidavit that the plaintiff's ‘pairokar’ was unable to reach Court on account of illness and that the plaintiff's counsel from Lucknow failed to reach. Bahraich on account of restrictions then imposed by the railway on journeys to Bahraich.
As held in — ‘Shib Sahai v. Tika’, AIR 1942 Oudh 350 (K), it is wrong to say that an affidavit is no evidence of the facts alleged therein merely because there had been a verbal denial thereof by the opposite party without any attempt to controvert it by a counter-affidavit or without asking for the attendance of the party swearing the affidavit for the purpose of cross-examination. The order of the lower Court seems to indicate that it considered it incumbent upon the person swearing the affidavit to go into the witness box even though no request to cross-examine the deponent was made by the other side. This is not correct.”
19. Similarly, in AIR 1942 Oudh 350 (K)’, we have the high authority of Ghulam Hasan J. (as he then was). In that ruling the ambit of the two rules was elaborately considered. After quoting the first rule of O. 19, the learned Judge 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 O. 19 of the CPC, 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 instance of either party, order the attendance for cross-examination of the deponent.
20. It was perfectly open to the lower Court to have ordered the production of the witness either of its own motion or at the instance of the defendant, for cross-examination in order to satisfy itself about the truth of the allegations in the affidavit. It does not appear from the record that the defendant's counsel asked the Court to order the attendance of the plaintiff so as to give him an opportunity to cross-examine him, nor did the Court ‘suo motu’ think it necessary to order the plaintiff's attendance. There was no counter-affidavit filed by the defendant in answer to the allegations contained in the affidavit. Under the circumstances, it cannot be said that there was no evidence before the Court in support of the allegations contained in the plaintiff's application for restoration of the suit.
21. The view of law taken by the lower Court that the affidavit was no evidence of the facts alleged therein merely because there had been a verbal denial by the defendant without any attempt to controvert it by a counter-affidavit or without asking for the attendance of the plaintiff for the purpose of cross-examination, is not supported by the provisions of O. 19, Rr. 1 and 2 of the CPC, referred to above. I have no doubt whatever that had the attention of the learned Judge been drawn to the provisions of O. 19, Rr. 1 and 2, he would not have expressed the opinion which he did, that the affidavit was no evidence of the facts alleged therein.”
22. We respectfully express our entire agreement with these observations. The Nagpur rulings have narrowed the law, if we may say so respectfully, to the extent of excluding affidavits, without a prior order, even in uncontested cases. After all when the opposite party does not controvert the affidavit, or remains absent, it would be refining a technicality to order the applicant to file another affidavit and not to read the affidavit already filed. The order receiving the affidavit is tantamount to ordering it and complies with the law. We accordingly dissent from the strict view taken by the two learned single Judges of this Court and express our opinion that the correct approach is as laid down by Ghulam Hasan J. in the last mentioned case.
23. Applying the law to the facts of this case, it is obvious that the first defendant sent a medical certificate but took no steps to request the Court to allow him a chance to cross-examine the plaintiff. No counter-affidavit was also filed and the defendant remained absent. The medical certificate did not satisfy the Court. The learned Judge was therefore perfectly justified in acting upon the affidavit because his order must be treated as equivalent to his having treated the affidavit as evidence. It was not necessary for the learned Judge to order the plaintiff to file another affidavit which alone he could read as evidence. The application for revision fails and is dismissed with costs. Counsels fee Rs. 25/-.
A/V.R.B
24. Application dismissed.