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High Court Of Madhya Pradesh
Shiv Dayal and S. P. Bhargava, JJ.
MITHAILAL GUPTA - Appellant
Versus
INLAND AUTO FINANCE - Respondents
Misc. (First) Appeal 111 Of 1965
Decided On : 08/10/1967
Whenever there is an issue of fact, the fact to be asserted or denied in answer to such issue is a fact in issue. It is the right of the parties to give evidence of the existance or non-existance of every fact in issue and such other facts as are declared in the Evidence Act as relevant facts.
The laws of evidence as to what is receivable or not are founded on a compound consideration of what, abstractedly considered, is calculated to throw light on the subject in dispute, and of what is practicable. The object of a trial in every case is to ascertain the truth in respect of the matter.
Proof, logically defined, is sufficient reason for assignment to a proposition as true. Practically considered, it is the establishment of facts in issue by proper legal means to the satisfaction of the Court. This is done by production of evidence. Proof is the effect or result of evidence, while evidence is the medium of proof. [Para 7]
All facts, except contents of documents may be proved by oral evidence. [Para 8]
(2) Affidavit evidence - when may be taken in place of oral evidence.
(3) Civil P.C., 1908 - O. 19, R. 2 - evidence by affidavit - when mal be taken - oral evidence when may be dispensed with.
Witnesses must be examined in open Court viva-voice.
Exceptions are:-
(i) where there is an agreement to take evidence by affidavit, Or
(ii) when there is an order of the Court to prove certain facts by affidavit, or
(iii) when there is an order by examination by interrogatories before a Commissioner. [Para 9]
Rule 2 of the 19th Order of the Code of Civil Procedure enables evidence to be given by affidavit upon an interlocutory application. An affidavit must be confined to the particular facts to be proved and such facts as the witness is able from his own knowledge to prove. An affidavit differs from a deposition inasmuch as, in the latter, the opposite party has always an opportunity to cross examine the deponent but an affidavit is taken ex-parte. Where the adverse party desires production of the deponent for cross-examination, the Court should ordinarily order attendance of the deponent for cross-examination. [Para 9]
(4) Arbitration Act, 1940 - S. 34 – application for stay of suit - facts in issue contested -oral evidence should be taken - only affidavits no legal proof.
An affidavit in support of an application is no evidence. It is intended merely to satisfy the Court, prima facie, that the allegations in the application are true so that the Court may issue notice to the opposite party and the Court may act upon it if the opposite party does not contest the allegations in the application. The result was that having denied an opportunity to the plaintiff to prove the issue of fact, he decided it merely on the averments made by the parties in the application under section 34 of the Arbitration Act and the reply to it. Such a finding cannot be sustained. AIR 1950 Mad. 64 relied on. 1961 JLJ 629 referred to. [Para 13]
( 1 ) THIS is an appeal from an order of stay passed under Section 34 of the arbitration Act.
( 2 ) THE appellant's suit, which has been stayed, is based on certain hire purchase agreements in respect of a motor truck bearing registration No MPA 1727. Then there are certain averments in the plaint with regard to motor vehicle No. MPA 2322 and yet another vehicle No. MPA 2979. For the purposes of this appeal, it is not necessary to state the details of those plaint averments. An agreement on a printed form was entered into between the plaintiff as the hirer, the first defendant as the owner and the second defendant as the guarantor. According to the plaintiff, he signed the agreement on a blank form. Under the said agreement, the first defendant acted as financier to enable the plaintiff to purchase a new Layland motor truck. It advanced Rs. 30,000 to him, to which a sum of Rs. 9,000 was added as finance charges, being interest at the rate of 15 per cent per annum for two years on the whole sum of Rs. 30,000, total amount being Rs. 39,000. It was payable in 24 monthly instalments of Rs. 1624 each commencing on 24 January 1960. The plaintiff paid to the first defendant not only the entire amount of the 24 instalments, payable under the aforesaid agreement, but also Rs. 119. 38 p. in excess. The suit is one for accounts in respect of the hire purchase agreement relating to motor truck No. 1727 and for a declaration that the plaintiff is entitled to exercise the option of purchase given to him under the agreements and could have cancelled the endorsement of hire purchase in favour of defendant 1 on the registration certificate of that vehicle.
( 3 ) HIRE purchase agreement in respect of motor truck No. MPA 1727 contained the following arbitration clause:-" iii. All questions and matters in difference between the parties hereto or their representative touching the construction hereof or any act or thing in regard to the rights, duties and obligations or the enforcement or their performance including the failure to pay a claim under the several hereinbefore recited clauses and/or arising out of or relating to this Agreement or to the subject matter thereof shall in accordance with the Indian Arbitration Act X of 1940, or any statutory modification thereof be referred to the sole arbitration of 'shri R. L. Mehta, Advocate, 320 Kucha Ghasi Ram, Delhi,' or in the event of his refusal or inability to act as Arbitrator, to the arbitration of 'shri K. K. Jain, Advocate daryaganj, Delhi,' or his nominee at the option of the party raising the question or matter in difference. The said party shall give ten day's notice thereof to the other party. . . . . . The party raising the question or matter shall deposit Rs. 100 as arbitration fee with the Arbitrator. . " the words and figures underlined (here into ' ') above are written in green ink in the printed form.
( 4 ) THE first defendant, by its application dated 30 January 1965, claimed stay of the suit under Section 34 of the Arbitration Act. It alleged that on 16 October 1964 and 9 November 1964, it gave two notices to the plaintiff specifying 20 November 1964 as the last date for the plaintiff to reply, but the plaintiff did not reply or comply with the notices. Thereupon, the first defendant made a reference to the arbitrator on 25 November 1964 to settle the matter between the plaintiff and defendant 1. The Arbitrator issued notice to the plaintiff on 11 December 1964 and fixed 28 December 1964 for hearing. The plaintiff avoided service and, having got scent of the matter, instituted the present suit on 23 December 1964. The arbitrator then fixed 20 January 1965 and thereafter 10 February 1965 for hearing. The plaintiff opposed this application as false and frivolous. He denied the existence, genuineness and validity of the alleged arbitration agreement and stated: -'' (3) That the signature of the plaintiff-applicant and the defendant pro forma opposite party No. 2 were o
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