Affidavits can only be used as evidence under Order 19 of the Civil Procedure Code, and must be properly drawn up and verified in accordance with the requirements of Order 19, Rule 3.

JUDGMENT - 1. This is a defendants 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 defendants 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 defusing 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 defendants 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

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