The admissibility of affidavit evidence in applications for substitution of legal representatives and setting aside abatement is subject to the provisions of Order 19, Rule 1 of the Code of Civil Procedure.

Deo, J—This application is by the legal representatives of Rajaramsao for revision of the order dated 2-5-50, passed by the 2nd Additional District Judge, Nagpur, setting aside the abatement of the appeal against Rajaramsao and bringing the applicants on record as his legal representatives.

2. Rajaramsao died on 16-4-49 at Bhiwapur and the application for substitution and setting, aside abatement was made on 25-8-49. It was alleged that the Appellant learnt of the death of Rajaramsao on 16-7-49 in Court. The limitation to make an application to bring on record the legal representatives expired on 15-7-49. The legal representatives opposed this application and contended that the Appellant knew of the death of Rajaramsao soon after it had taken place, the village Kurza where the Appellant resides being near Bhiwapur. The Appellant's application was supported by an affidavit, while the legal representatives did not support their objection by an affidavit. The lower appellate Court considering this affidavit as evidence, allowed the application relying on it.

3. It is contended for the legal representatives that the lower appellate Court acted with material irregularity and illegally in assuming the affidavit as evidence. It is not disputed that if the affidavit evidence is excluded there is no evidence to support the allegations of the Appellant. It is no doubt true, it is the practice of the civil Courts in this State to require an affidavit to support the allegations in applications under Order 22, Rule 9 or Order 22, Rule 4, Code of Civil Procedure. The Rules and Orders (Civil) do not make provision for it. So far as the High Court is concerned, there is an express rule which requires such applications to be supported by affidavits. If affidavit is not evidence under law, the question is whether the practice of requiring such affidavits makes it an evidence. Section 1, Evidence Act excludes the application of the Act to affidavits presented to any Court or officer. What ''evidence'' means and includes is described in Section 3 of the Act but affidavit is not within that description.

Under Section 30, Code of Civil Procedure subject to such conditions and limitations as may be prescribed, the Court may, at any time, either of its own 'motion or on the application of any party order any fact to be proved by affidavit. The conditions and limitations are to be found in Order 19 of the Code. Rule 1 of that Order provides that any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable. It, therefore, follows that there must be an order in each case stating the particular fact or facts which are to be proved by an affidavit. The Evidence Act is not a fragmentary enactment but a consolidatory one, repealing all previous rules of evidence other than those saved by the last part of Section 2; and if affidavit is not evidence under the Act it cannot be taken as evidence unless it is permitted by Order 19, Code of Civil Procedure. The practice which is obviously not warranted by law will not override these provisions.

4. It was rightly argued that Order 19, Rule 2 applies only to interlocutory applications like applications for attachment before judgment, temporary injunctions, issue of commission, inspection of documents, etc. It does not apply to applications of substantive nature like an application under Order 9, Rule 13, Code of Civil Procedure. see - Federal India Assurance Co. Ltd. v. Anandrao, 1944 ILR(Nag) 436, or to an application for leave to sue in - 'forma pauperis' vide - Gooru Narayana v. Lakshmayya, 1939 AIR(Mad) 927. It cannot also apply to an application for setting aside abatement, which is of a substantive nature. The appeal had abated on 15-7-49, and the Appellant sought to revive that appeal by having the abatement set aside.

5. The lower appell