1986 Supreme(Bom) 30

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
Mohta V.A. Deo B.G., JJ.
Mangilal Rungta.... Appellant.
Versus
Manganese Ore (India) Ltd., Nagpur.... Respondents.
First Appeal No. 21 of 1979, decided on 30-1-1986.
Advocates appeared :
V.R. Manohar, for appellant.
S.V. Natu for, respondent.

Headnote:Order IX Rules 13 and 96-Refosal to set aside the ex parte decree be coming final-Defendant can not make a grievance about ex parte proceedings to appeal filed against exparte decree.

       Held: that no court in exercise of power under Order 19, Rule 1, 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. Order 18, Civil Procedure Code, deals with the subject of bearing 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 (Section 1) and defines the term "evidence" (Section 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., order 5 Rule 19, Order 11 Rules 5 to 20, Order 32 Rule 5, Order 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 Order 18 Rule 4 can be made by any Court. Order 19 Rule I is a general power and Rule 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 Rule I the terminology "fact or fact" used therein may be noticed. Now in a given case result of the whole suit may depend upon proof 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 he 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 Order 18, Rule 4.

       Needless to mention that ex parte matters would stand on some what different pedestal and in relation to them discretion under Order 19 Rule 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.

       Order XIX, Rule 1- Whether no Court has jurisdiction to order proof of whole suit by affidavit in exercise of power under Order 19 Rule 1.

       No Court in exercise of power under Order 19, Rule 1 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. 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 to row 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 Order 18, Rule 4. Needless to mention that ex parte matters would stand on some what different pedestal and in relation to them discretion under Order 19, Rule 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.