Civil Revn. Appln. No. 37 of 1961

14th January, 1963.

Petitioner Counsel: R.F. Rustomji and H.N. Soni for, Opponent.

Cases Cited:
State of Bombay v. Purushottam Jog, AIR 1952 SC 317,(V 39),1952 Cri LJ 1269 [Para 9]
Sorabji Medora v. Oriental Life Assurance Co., AIR 1944 Bom 351 (V 31),46 Bom LR 767 [Para 12]
Padmabati Dasi v. Rasik Lal Dhar, ILR 37 Cal 259,6 Ind Cas 666 [Para 9]
Subal Chandra v. State of West Bengal, AIR 1952 Cal 255 (V 39) [Para 9]
Kanhaiyalal v. Meghraj, AIR 1954 Nag 260 (V 41),ILR (1954) Nag 603 [Para 11]
Nauratan Mal v. Hari Singh, AIR 1952 Raj 90 (V 39),ILR (1951) 1 Raj 304 [Para 9]

JUDGMENT

ORDER :-This is a defendant's application for the revision of an ex parte decree for Rs. 1047-81 N. P. and costs.

2. The plaintiff, Messsr. Bharat Oil Mills, Nagpur, had claimed Rs. 1047-81 N. P. from the defendant-firm at Calcutta on account of damages resulting from the failure of the defendant to take delivery of certain quantities of linseed oil cakes and. the consequent sale thereof by the plaintiff at a lower price. The defendant had contested the suit on several grounds, which need not be stated for the purposes of this revision. The suit was fixed for final disposal on 17-10-1960, on which date the defendant's Counsel prayed for an adjournment on the ground that the defendant could not come from Calcutta. The prayer was granted subject to the condition of paying Rs. 25/- as adjournment costs to the plaintiff. On the adjourned date, the defendant did not appear and its Counsel did not pay the adjournment costs but only applied (Page 64 of the record) with the copy of a telegram (page 88 of the record) from a partner of the defendant-firm for an adjournment, on the ground that the person, who was to come as a witness, had suddenly fallen ill. He also prayed, in the alternative, that a commission be issued for examining the ailing witness. The learned Small Causes Judge rejected this application and proceeded ex parte against the defendant The defendant is now challenging the ex parte decree passed against him.

3. According to the learned Advocate for the defendant, the learned Small Causes Judge had acted illegally in the exercise of his jurisdiction in rejecting the application for adjournment when the defendant had sufficient cause for non-appearance. He could not, however, explain how the defendant could claim a consideration of his application for a further adjournment without having complied with the condition precedent of paying the adjournment costs of Rs. 25/-. When the condition was not complied with, the learned Small Causes Judge was entirely within his rights in refusing a further adjournment and in proceeding ex parte against the defendant.

4. Whether the defendant was really prevented by sufficient cause from appearing on that date was a pure question of fact. If the defendant had made an application under Section 17 of the Provincial Small Cause Courts Act for setting aside the ex parte decree on that ground, the opposite party would have had an opportunity of meeting the allegations of the defendant and the trial Court would have been able to decide on facts whether the defendant and/or its witness had sufficient cause for non-appearance that day. The defendant, however, avoided making such an application for fear that an adverse finding of fact may be given against it with respect to the alleged sufficiency of cause for non-appearance.

5. In the application for revision, paragraph 5 contained an averment that the defendant's witness was prevented from coming to Court due to sudden attack of influenza but there was nothing therein to explain the failure of the defendant or its partner to appear in Court. Under these circumstances, even the learned Counsel for the defendant-applicant did not dispute that there was nothing to show that the defendant had sufficient cause for non-appearance. The ex parte decree cannot, therefore, be set aside on that ground.

6. Shri Mahajan, Advocate for the defendant-applicant, then urged that the learned Small Cause Judge had committed an error of law in rejecting the alternative prayer for issuing a commission for the examination of an absent witness. The claim of Shri Mahajan before me that this witness lived beyond two hundred miles at Calcutta, was without any basis in the record. The application at page 64 did not even mention the name or the particulars of the witness and did not say that the witness was living beyond two hundred miles. There was also no basis for the suggestion that the witness, who was not even named in the application, was prevented by his illness from coming to Court. There was no ground, which could have entitled the defendant to claim the issue of a commission for examining the absent witness. Moreover, the defendant had not availed of its right to examine this witness on commission on the two previous hearings and had instead undertaken to produce the witness in Court. That would mean that it had waived its right to have a commission issued.

7. Shri Mahajan then submitted that the witness to be examined was Shyamsunder, the partner of the defendant firm. That claim stood negatived by the averments in the application at page 64 in the trial Court's record and by paragraph 5 in the grounds of revision, which did not state that the defendant's partner was to be examined as a witness. Under these circumstances he learned trial Judge rightly refused the application for the issue of a commission for examining an absent witness which was a mere ruse to get an adjournment.

8. There was, however, one other point in the case which would require interference in revision. After proceeding ex parte against the defendant, the learned trial Judge ordered, presumably under Order 19, Rule 1, of the Code of Civil Procedure, that an affidavit be filed in support of the plaintiff's claim and accordingly the affidavit (Exhibit P-1) was filed. I was taken through this affidavit by the learned Advocate for the plaintiff-opponent. That affidavit virtually reproduced most of the allegations in the plaint. The deponent Radheshyam, who was a partner of the plaintiff and who resided at Nagpur, had mentioned several facts that had taken place behind his back at Calcutta where he had not gone and where he did not live on the relevant dates. He had also referred to certain information, which he had received from letters, through telephone calls and through some other sources. He had also referred to the sale of the property in dispute at Rs. 10-50 nP. per maund which was held at Calcutta behind his back. All these averments based on information received by the deponent from some other sources could not be within the personal knowledge of the deponent, and yet all this information received from other sources, was verified by the deponent Radheshyam as being true from personal knowledge though that information was not from personal knowledge. Consequently, the verification of these matters, not being from personal knowledge, as on personal knowledge, (sic) was not and could not be true and all the information received from other sources must be deemed to be not verified at all.

9. The Calcutta High Court had observed in Padmabati Dasi v. Rasik Lai Dhar, ILR 37 Cal 259 that the provisions of Order 19, Rule 3, of the Code of Civil Procedure must be strictly observed and every affidavit must clearly express how much is a statement of the deponent's knowledge and how much is a statement of his belief, and the grounds of belief must also be stated with sufficient particularity. Nauratan Mal v. Hari Singh, AIR 1952 Raj 90 also lays down that it is the duty of a person swearing an affidavit to state separately what parts of it he is swearing on personal knowledge and what parts on belief or the information received and the failure to comply with this rule, vitiates the affidavit. In Subal Chandra v. State of West Bengal AIR 1952 Cal 255, the Calcutta High Court has laid down that unless affidavits are properly verified and are in conformity with Order 19. Rule 3, of the Civil Procedure Code, they will be rejected by the Court and there should be no laxity in the matter of proper verification of affidavits. The view in ILR 37 Cal 259 cited supra was re-affirmed by the Supreme Court in State of Bombay v. Purushottam Jog. AIR 1952 SC 317 wherein the following observations were made :

"We wish, however, to observe that the verification of the affidavits produced here is defective ... ... ... ... ... We point this out as slipshod verifications of this type might well in a given case lead to a rejection of the affidavit. Verification should invariably be modelled on the lines of Order 19, Rule 3, of the Civil Procedure Code, whether the Code applies in terms or not. And when the matter deposed to is not based on personal knowledge the sources of information should be clearly disclosed. We draw attention to the remarks of Jenkins, C.J. and Woodroffe, J. in ILR 37 Cal 259 and endorse the learned Judges' observations".

10. It would be seen from the above mentioned authorities that the affidavit (Exhibit P-1) did not comply with the requirements of law as the major part of it, which was on information received from others was not verified by stating the source of information and the grounds of belief with sufficient particularity. That affidavit was not better than a mere scrap of paper and could not have any value as evidence in the case. Shri Soni, Advocate for the plaintiff-opponent, did not dispute that this affidavit (Exhibit P-1) was not in accordance with the requirements of law. He, however, tried to support it on the ground that it is a common practice to resort to affidavit evidence in ex parte suits, as also in many other matters, and affidavits are filed by parties and

accepted by Courts even though they do not conform with the requirements of law. I am not aware if any such practice exists, but if it does, it is clearly unwarranted and ought to stop. In view of his emphatic assertion that it is a common practice to resort to affidavits which do not conform with the requirements of law, I would like to point out the correct position of law in connection with affidavits.

11. What evidence means and includes, is described in Section 3 of the Indian Evidence Act, but affidavits are not included within that description. On the contrary, affidavits have been expressly excluded by Section 1 of the Indian Evidence Act from the applicability of that Act. That means that affidavits cannot be used as evidence under any of the provisions of the Indian Evidence Act. Affidavits can however, be used as evidence, only under Order 19, of the Civil Procedure Code. In accordance with Order 19, Rule 1, of the Civil Procedure Code, the Court has, for sufficient reasons, to pass an order that any particular fact or facts may be proved by affidavit. That would mean that affidavit evidence cannot be entertained unless the Court passes an order, for sufficient reasons, that any particular fact or facts may be proved by affidavits. While passing an order under Order 19, Rule 1, to call for evidence on affidavits, it is necessary to consider compliance with the proviso to Rule 1 and with the requirements of R. 2, under Or. 19, as the circumstances of each case may require. I would also like to point out the decision in Kanhaiyalal v. Meghraj, ILR (1954) Nag 603 : (AIR 1954 Nag 260) wherein it was held that in cases where affidavits are filed in support of applications and are received by the Court, the order receiving the affidavit is tantamount to passing an order under Order 19, Rule 1, of the Civil Procedure Code and complies with the law. When an affidavit is filed, the Court official receiving it ought to see that it is properly drawn up and verified as per Order 19, Rule 3, of the Civil Procedure Code and the instructions in Chapter XXIII, Civil Manual, Volume 1. If it is not properly drawn up or verified, it ought not to be received and the parties should be required to file a proper affidavit. A judge ought not to act upon an affidavit which is not properly drawn up and verified in accordance with the requirements explained in the rulings cited supra.

12. It would also be necessary to remember the remarks of the Division Bench in Sorabji Medora v. Oriental Life Assurance Co. AIR 1944 Bom 351 with respect to the undesirability of prolix affidavits which contain a great deal of unnecessary and argumentative matter.

13. The learned Advocate for the plaintiff-opponent did not dispute that the affidavit (Exhibit P-1) did not operate as evidence and when it is rejected, as it must be, there is no evidence in the case which would justify the ex parte decree. The application for revision is allowed, the judgment and decree passed by the Small Causes Judge are quashed and set aside and the small cause suit is remanded to the trial Court for a proper decision on merits in accordance with law. Under the circumstances of the case, I make no order for costs.

Revision Allowed