The main legal principle established is that the courts must not adopt the procedure of receiving affidavits as evidence to prove substantive rights without affording an opportunity for cross-examination and without allowing the plaintiff to adduce oral and documentary evidence.

R. V. VASANTHA KUMAR, J.

( 1 ) THIS civil revision petition is directed against the judgment and decree dated 12-3-1991 passed in SC No. 76 of 1988 by the court of the additional small causes judge, Bangalore.

( 2 ) THE suit is filed by a limited company under the name of srcc visalamchit fund ltd. , in corporated under the Indian Companies Act for recovery of balance of subscription amount due by the defcndanis-1 to 3 under the contract documents entered into between the parties.

( 3 ) IN pursuance of suit summons issued, first and third defendants after due service of suit summons have remained absent and they were placed ex pane. Second defendant after having entered appearance in the suit proceedings neither filed written statement nor participated in the proceedings and the court placed him also ex pane. Plaintiff instead of adducing oral and documentary evidence, has filed an affidavit by way of evidence in respect of the averments contained in the plaint. The court after perusal of the affidavit and taking into consideration the materials on record dismissed the suit on the ground that the suit having not been properly instituted by a duly authorised agent of the company and further did not place any reliance on the affidavit filed by a person who has not been duly authorised by plaintiff-company. As against the dismissal of the suit, the plaintiff-company has filed this revision petition.

( 4 ) THE important question that arises for consideration is whether theprocedure adopted by the court in receiving affidavit by way of substantial evidence in respect of the causes in the suit for purposes of either non-suiting the claim or for decreeing the same without oral or documentary evidence on behalf of the plaintiff and without affording opportunity to the defendants to participate in the proceeding and depriving them the right of cross-examination in spite of their being placed ex pane is justifiable.

( 5 ) IN the instant case, the question that arises for consideration is whether the practice of accepting affidavits by way of substantive piece of evidence for the causes espoused in contingencies/eventualities when defendants/opponents having not filed their written statements and placed ex parte is legally permissible to pronounce judgments on the affidavits by themselves and whether acceptance of such affidavits would subserve the ends of substantial justice. It has become a regular feature by the courts of small causes in cases where defendants are placed ex pane to order the plaintiffs to the causes to prove their case by filing affidavits. To summarise the eventuality, when affidavits are treated as part of evidence one has to look into various Provisions envisaged under Civil Procedure Code where affidavits play their role to prove the points at issue. Order 11 envisages of filing of affidavit/s regarding documents. Order 12 envisages filing of affidavit of signatures. Order 19 envisages of proving of the facts by affidavit. Order 48, Rule 3 of CPC deals with the use of forms in the appendices. Form No. 11 in appcndix-b relates to the affidavit of process server to accompany the return of summons or notice as envisaged under order 5, Rule 18 of CPC. Form nos. 4 and 5 appendix c relates to affidavits as to documents covered under order 11 of CPC. Order 19 deals with affidavits relating to proof of particufar facts. The effect of pronouncing judgment on the strength of affidavits regarding substantive causes espoused by the party without affording an opportunity to the contesting party to cross-examine is to be stated is not a procedure which would subserve the ends of Justice since CPC is designed to facilitate Justice and further it is not a penal enactment for punishment and penalties.

( 6 ) IN sangram singh v election tribunal, kotah, reported in AIR 1955 SC 425 at para 16 it is observed as follows:-"now a code of procedure must be regarded as such. It is "procedure", something designed to facilitate Justice and fu

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