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B.N. Munibasappa Vs. Gurusiddaraja Desikendra Swamigal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 1131 of 1957
Judge
Reported inAIR1959Kant139; AIR1959Mys139
ActsCode of Civil Procedure (CPC), 1908 - Sections 30 - Order 5, Rule 19 - Order 9, Rules 9 and 13 - Order 11, Rules 9 to 20 - Order 18, Rule 4 - Order 19, Rules 1, 2 and 3 - Order 21, Rules 58, 90, 97 and 100 - Order 32 - Rule 3 - Order 33, Rule 2 - Order 38, Rules 1 and 5; Mysore House Rent and Accommodation Control Act, 1951 - Sections 8; Evidence Act - Sections 1 and 3; Indian Succession Act
AppellantB.N. Munibasappa
RespondentGurusiddaraja Desikendra Swamigal and ors.
Appellant AdvocateV.L. Narasimha Murthy, Adv.
Respondent AdvocateS.N. Gopal Rao, Adv.
Excerpt:
- karnataka societies registration act, 1960 (17 of 1960) sections 9 & 10 :[p.d.dinakaran, c.j. & v.g.sabhahit,j] alternation of memorandum procedure - amendment into bye-laws of societies - in order to conduct special general body meeting notice has been served to all members - however, said notice was not accompanied by proposed amendment - every resolution has to be passed by members - special general body meeting notice should contain written or printed report of proposed amendment held, mandatory requirements not complied with. also votes casted were less than three times number of votes cast against resolution. meeting convened held to be contrary to act . registration of amended bye-laws is not proper. - 8. it is now well settled that in the absence of any agreement between.....ordera.r. somnath iyer, j.1. this is a revision petition presented by a tenant against whom an application had been made by a person who claimed to be his landlord for his eviction on the ground that he was in default in regard to arrears of rent payable by him. on 6-10-1956, an order was made in those proceedings ex parte, ordering the eviction of the tenant. the tenant, thereupon, made an application on october 15, 1956, for getting that ex parte order set aside. the allegation that he made was that on the date on which the ex parte order was made against him he was present in court although his advocate could not be present on account of his illness as a result of which he was being treated on that date in a private nursing home. according to him, when the case was called earlier in.....
Judgment:
ORDER

A.R. Somnath Iyer, J.

1. This is a revision petition presented by a tenant against whom an application had been made by a person who claimed to be his landlord for his eviction on the ground that he was in default in regard to arrears of rent payable by him. On 6-10-1956, an order was made in those proceedings ex parte, ordering the eviction of the tenant. The tenant, thereupon, made an application on October 15, 1956, for getting that ex parte order set aside.

The allegation that he made was that on the date on which the ex parte order was made against him he was present in Court although his advocate could not be present on account of his illness as a result of which he was being treated on that date in a private nursing home. According to him, when the case was called earlier in the day, although the tenant appeared before the Court, the-landlord did not. The case was accordingly kept by and was never called although he was waiting in the verandah of the court-hall till 5 p. m. that day.

His story was that the court premises were crowded beyond capacity on that date on account ofa very sensational trial which was going on in the Court of the Sessions Judge upstairs, with the result that he had to wait in the verandah of the court-hall of the learned Munsiff before whom the proceedings relating to this case were going on. It was only later that he came to know that an ex parte order for eviction had been made against him.

2. On this application, notices were ordered to the landlord. After the landlord has notified about this application and he filed his statement of objections, in which he repudiated the truth of the allegations made by the tenant, the case was posted on 23-11-1956, for evidence, to 2-2-1957. On 2-2-1957, the case was again adjourned to 16-3-1957. On 16-3-1957, the learned Munsiff made an order directing the parties to produce 'evidence by affidavits,' the meaning of which, as I understand it, is that the parties had to prove their allegations by the production of affidavits.

3. The landlord and the tenant, in addition to their own affidavits, produced two other affidavits each. The affidavits produced on the one side contradicted the allegations contained in the affidavits produced by the other side. The learned Munsiff, who preferred to accept the affidavits produced by the landlord and these of the other two deponents who had sworn to affidavits in support of the landlord's story, dismissed the application made by the tenant. It is that order against which this revision petition has been presented.

4. Mr. Narasimha Murthy, the learned Advocate for the petitioner in this revision petition, who shall hereinafter be referred to as the tenant, raised two contentions. His first contention is that the learned Munsiff had no power to direct the parties to prove their cases by the production of affidavits. His second contention is that even if a case could have been disposed of on the affidavits produced by the parties, this is a case in which the learned Munsiff had acted with material irregularity in depending upon the affidavits produced by the landlord and in discarding these produced by the tenant.

5. The first contention raises the question of the competence of the learned Munsiff to direct the parties to prove their allegations in this case by the production of affidavits. It is seen from the proceedings in the case that the learned Munsiff, when making an order on 16-3-1957, which reads 'Evidence by affidavits by 29-6-57' did not give the provision of law under which he made that order nor the reason why he gave that direction, Mr. Chandriah, the learned Advocate for the landlord admits that that order was not made as a result of any agreement between the tenant and the landlord.

6. Now, it is seen that Rule 4 of Order 18 of the Code of Civil Procedure provides that the evidence of witnesses, in attendance, shall be taken orally in open Court in the presence and under the personal direction and superintendence of the Judge. In this case, it is not disputed that the parties intended to produce evidence in support of their respective cases and, indeed, the proceedings dated 23-11-1950, and 2-2-1957, make it clear that it is so.

That being so, the procedure which normally should have been adopted by the learned Munsiff for recording that evidence was that provided by Rule 4 of the Order 18 of the Code of Civil Procedure. But. Section 30 of the Code of Civil Procedure, enables a Court, subject to such conditions and limitations as may be prescribed, either on its own motion or on the application of any party, to order a tact to be proved by affidavit. Those conditions and limitations referred to in Section 30 are these prescribed by Order 19 of the Code of Civil Procedure. Rule 1 of Order 19 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:

Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit.'

Rule 2 of that Order reads :

'(1) Upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent.

(2) Such attendance shall he in Court, unless the deponent is exempted from personal appearance in Court, or the Court otherwise directs.'' Rule 3 of that Order specifies the matters to which affidavits shall be confined.

7. Mr, Chandriah, the learned Advocate for the landlord, urges that the order of the learned Munsiff made on 16-3-1957, must be regarded as one made either under Rule 1 or Rule 2 of Order 19 of the Code of Civil Procedure. Mr. Chandriah also contends that by reason of the fact that the tenant himself produced two affidavits in compliance with that order, a presumption has to be raised that the tenant consented to the direction given by the learned Munsiff. According to Mr. Chandriah such consent will amount to an agreement between the parties that their cases should he allowed to be proved by affidavits.

8. It is now well settled that in the absence of any agreement between the parties and in the absence of an order made by a Court under Rule 1 of O, 19 of the Code of Civil Procedure, and except in cases in which an order is made for examination by interrogatories or before a Commissioner the witnesses at the trial should be examined viva voce and in open Court, Warner v. Mosses, (1880) 16 Ch D 100, The principle laid down in that decision is exactly what emerges from the provisions of Section 30, Rule 4 of Order 18 and Rules 1, 2 and 3 of Order 19 of the Code of Civil Procedure, That, is also the effect of the provisions of Section 1 of the Evidence Act according to which that Act does not apply to affidavits presented to any Court or Officer. That that is the position is also clear from Section 3 of the Evidence Act which defines evidence as meaning:

'(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry.'

Now, in this case, it cannot be disputed that if the Court had made an order under Rule 1 of Order 19 of the Code of Civil Procedure, and there were circumstances and reasons justifying such an order, a particular fact or facts could have been proved by affidavit, on such conditions as the Court thought reasonable. Likewise, as provided by Rule 2 of Order 19 of the Code of Civil Procedure, it was open to the parties to give evidence by affidavit on any application made by them.

The question in this case is whether the provisions of Rule 1 or Rule 2 of Order 19 of the Code of Civil Procedure have any application to the present case and whether the order made by the learned Munsiff directing that the parties should prove their case by the production of affidavits could have properly been made under either of these two rules.

9. It would, I think, be convenient to deal with Rule 2 of Order 19 in the first instance. That rule provides that evidence may be given by affidavits uponany application. The question sometimes did arise as to whether the application referred to in Rule 2 is merely an interlocutory application and whether it also includes a substantive application which itself initiated proceedings in the case.

10. In Federal India Assurance Co., Ltd. v, Anandrao Pandnrangrao, AIR 1944 Nag 161, an ex parte decree was set aside on an affidavit produced by the defendant. That order was challenged before the High Court and the argument addressed on behalf of the plaintiff was that the affidavit produced by the defendant and on which the Court below relied could not he regarded as evidence within the meaning of that expression contained in Section 3 of the Evidence Act.

It was also contended that the provisions of Rule 2 of Order 19 of the Code of Civil Procedure did not apply to applications of a substantive nature such ns these made under Rule 13 of Order 9, Rule 90 of Order 21, Rule 100 of Order 21, and Rule 2 of Order 33, of the Code of Civil Procedure. Bobde, J-, was of the view that both these contentions had to be accepted. He came to the conclusion that in the absence of an agreement between the parties, affidavits could not be treated as evidence and that the provisions of Rule 2 of Order 19 of the Coda of Civil Procedure did not apply to substantive applications like the one which had been made in that case under H. 13 of Order 9 of the Code of Civil Procedure.

In support of his view that an affidavit cannot be treated as evidence unless both the parties had agreed to prove their cases by the production of afti-davits, that learned Judge relied on a decision of the High Court of Madras in Krishna Ayyar v. Madhava Panikkar AIR 1921 Mad 3, and also on a later decision of that High Court in Gooru Narayana v. Lakshmayya : AIR1930Mad927 . That view taken by Bobde, J., was followed by Deo, J., an Gopikabai' v. Narayan Govinda AIR 1953 Nag 135. That was a case in which an appeal had abated by reason of the legal representatives of the appellant not having been brought on record within the prescribed period of limitation.

On an application being made for setting aside the abatement of the appeal in these circumstances, the Court before which the appeal was pending set aside that order of abatement depending upon an affidavit produced along with the application made by the appellant. The proposed legal representatives who objected to the setting aside of the order of abatement did not produce any affidavit in support of their objection.

When that order setting aside the abatement was challenged before the High Court of Nagpur, Deo,J; expressed the view that the affidavit produced by the appellant could not be regarded as evidence within the meaning of that expression contained in Section 3 of the Evidence Act, and that the provisions of Rule 2 of Order 19 of the Code of Civil Procedure applied only to interlocutory applications and not to a substantive application like an application under Rule 13 of Order 9 of the Code of Civil Procedure. He was also of the view that it could not apply to an application for setting aside an abatement which, in his view, was an application of a substantive nature. He accordingly reversed the order made by the appellate Court setting aside the abatement.

11. The question again came up before a Bench of the High Court of Nagpur in Kanhaiyalal S. Dadlani v. Meghraj Ramkaranji, AIR 1954 Nan 260. The order that was brought up in revision before that High Court was one restoring to tile a small cause suit which had been dismissed for default. That order had been made by the Court below on the strength of an affidavit which had been produced by the plaintiff whose suit was dismissed.

The contention urged by the defendant in the revision petition was that the affidavit was improperly regarded as evidence by the Court below and that since the provisions of Rule 2 of Order 19 of the Code of Civil Procedure applied, as it had been held in the two earlier decisions of that Court, only to interlocutory applications and not to substantive applications, the order under revision was unsustainable. The learned Judges who heard that revision petition were of the view that the two earlier decisions of their Court had been wrongly decided.

Those earlier decisions were accordingly overruled. The first principle which emerges from their decision is that the provisions of Rule 2 of order 19 of the Code of Civil Procedure applies not only to interlocutory applications but also to substantive applications like an application under Rule 13 of Order S of the Code of Civil Procedure. The second is that if an affidavit was properly produced in accordance with the provisions of Rules 1 and 2 of Order 19 of the Code of Civil Procedure, it should be regarded as evidence notwithstanding the provisions of Sections. 1 and 3 of the Evidence Act.

12. In Srinivasa, Ayyangar v. Pichumani Ayyan-gar : AIR1933Mad164 , a decree was made by the Subordinate Judge in a suit brought on a promissory note in which the defendant, though served, did not appear. That decree was made on the basis of an affidavit produced by the plaintiff's next friend. The objection taken to that decree in the High Court was that the Subordinate judge erred in admitting proof of the execution of the note by the affidavit of the plaintiff's next friend. That revision petition was dismissed on the ground that Rule 1 of Order 19 of the Code of Civil Procedure enabled the Court to order that any fact may be proved by an affidavit of that description.

13. AIR 1939 Mad 927, is another decision of the High Court of Madras in which it was held that an order made permitting the plaintiff to sue in forma pauper is on the basis of the affidavits produced by him was liable to be set aside on the ground that affidavits could not properly be acted upon unless both parties agreed to have them treated as evidence. This was a ease in which the opposite side objected to the affidavits produced by the plaintiff being regarded as evidence.

14. The other decision of the High Court of Madras is Marneedi Satyam v. Venkataswami, AIR 1949 Mad 689. That was a case in which a sale deed had been permitted to be proved under the provision of Rule I of Order 19 of the Code of Civil Procedure by the production of an affidavit. It-was pointed out by Raghav Rao, J., in the second appeal arising out of that suit that affidavit evidence is not permitted except where there is an agreement between the parties that evidence may be taken by an affidavit or where under Rule 1 of Order 19 of the Code of Civil Procedure there was an order of Court that particular facts may be proved by an affidavit or that the affidavit of any witness may be read at the hearing. The learned Judge proceeded to point out that although as provided by Section 1 of the Evidence Act that Act is not applicable to the affidavits presented to Courts, it does not mean that any affidavit of any person can go in as evidence proprio vigore . without necessity for him to enter the witness box.

15. The view taken by their Lordships in the High Court of Nagpur in AIR 1954 Nag 260, was based on that taken by Gulam Hasan, J., in Shib Sahai v. Tika, AIR 1942 Oudh 350. That learned Judge, in the course of his Judgment, while referring to the provisions of Rule 1 of Order 19 of the Code of Civil Procedure, observed as follows:

'A perusal of this rule leaves no doubt that it is open to a Court on sufficient grounds to allow proof of facts by means of affidavits, but if the production of the declarant of the affidavit is required in good faith for cross-examination by any party, the court shall not use such affidavit in support of the facts alleged therein without the production of the declarant. Rule 2 of Order 19, Civil P. C., puts the matter further beyond doubt. This rule is to the effect that upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent.

It was perfectly open to the lower Court to have ordered the production of the witness either of its own motion or at the instance of the defendant, for cross-examination in order to satisfy itself about the truth of the allegations in the affidavit. It does not appear from the record that the defendant's counsel asked the Court to order the attendance of the plaintiff so as to give him an opportunity to cross-examine him, nor did the Court 'suo motu' think it necessary to order the plaintiff's attendance. There was no counter-affidavit filed by the defendant in answer to the allegations contained in the affidavit. Under the circumstances it cannot be said that there was no evidence before the Court in support of the allegations contained in the plaintiff's application for restoration of the suit.

The view of law taken by the lower Court that the affidavit was no evidence of the facts alleged therein merely because there had been a verbal denial by the defendant without any attempt to controvert it by a counter-affidavit or without asking for the attendance of the plaintiff for the purpose of cross-examination, is not supported by the provisions of Order 19, Rules. 1 and 2, Civil P. C., referred to above. I have no doubt whatever that had the attention of the learned Judge been drawn to the provisions of Order 19, Rules. 1 and 2, he would not have expressed the opinion which he did , that the affidavit was no evidence of the facts alleged therein.'

Sinha C. J., as he then was, and Hidayatullah J., while referring to these observations of Gulam Hassan J., said:

'We respectfully express our entire agreement with these observations. The Nagpur rulings have narrowed the law if we may say so respectfully, to the extent of excluding affidavits, without a prior order, even in uncontested cases. After all, when the opposite party does not controvert the affidavit, or remains absent, it would be refining a technicality to order the applicant to file, another affidavit and not to read the affidavit already filed. The order receiving the affidavit is tantamount to ordering it and complies with the law. We accordingly dissent from the strict view taken by the two learned single Judges of this Court and express our opinion that the correct approach is as laid down by Gulam Hasan J., in the last mentioned case.'

The two earlier Nagpur rulings which, according to them, had placed an unduly strict interpretation on the provisions of Rules. 1 and 2 of Order 19 of the Code of Civil Procedure, are these reported in AIR 1944 Nag 161 and AIR 1953. Nag 135, to which I have already referred.

16. From the above discussion, what emerges is this: Ordinarily, evidence has to be recorded viva voce in court as provided by Rule 4 of Order 18, C. P. C., that procedure may be dispensed with if the parties agree that affidavits should be substituted for the evidence to be so recorded. But in cases in which there is no such agreement and an allegation contained in an affidavit produced by-one party is not controverted by the other, it would be open to the Court to base its decision upon the uncontroverted affidavit. That would be the procedure which it obviously has to adopt under the provisions of Rules. 1 and 2 of Order 19 of the Code of Civil Procedure.

Among the decisions of the various High Courts to which 1 have referred, it will be seen that in ail these cases in which an affidavit was-regarded as sufficient evidence even in the absence of an agreement between the parties, the-statements contained in that affidavit had not been repudiated or controverted by the opposite side. But, once these statements are controverted, as it was done in AIR 1939 Mad 927, it would, I think, be impossible for any Court to treat the affidavit which was impeached in that manner as evidence on which a decision could be founded.

It is true that the view taken by Ghulam Hasan J., was that it was not enough if the statement contained in such an affidavit was repudiated by mere verbal denial. But, it seems to me, that whether such a verbal denial would or would not necessitate the production of evidence in the ordinary way should depend upon the facts and circumstances of each case.

17. In my opinion, while it would not be correct to say that an affidavit cannot be regarded as evidence even though it is properly produced under Rule 1 or 2 of Order 19 of the C. P. C., it is clear that an affidavit can never take the place of evidence recorded in the ordinary way unless the case is one to which the provisions of those rules apply or the affidavit relates to a matter like an application for an attachment or an injunction in regard to which the Code itself has made express provision.

I am also of the view that it would not be right to restrict the provisions of Rule 2 of Order 19 of the Code of Civil Procedure, in cases to which that rule applies, only to interlocutory applications. If I may say so, with great respect, the view taken by their Lordships of the Nagpur High Court in AIR 1954 Nag 260, that the provisions of that rule apply as much to substantive applications as they do to interlocutory applications is the way in which that Rule has to be interpreted.

18. But there could be little doubt that the Court cannot, under Rule 2 of Order 19, direct the parties to give evidence upon an application only by affidavit. The language of Rule 2 when contrasted with that of Rule 1, makes it clear that unlike Rule 2, Rule 1 is an enabling provision entitling the parties to give evidence by affidavit upon any application, and does not confer power on the court to compel the parties to do so.

That is the construction which Mr. Narasimhamurthy wants me to place on that rule, which, in my opinion, the language of the Rule fully supports. Further, the provision for cross-examination contained in that Rule 1, demonstrates the futility of applying that Rule to cases in which the parties do not consent that affidavits and affidavits alone should be treated as evidence or in which the statements made in the affidavits produced by one party are controverted by these produced by the other. The present case is one of that kind.

19. In my opinion, it is plain that this was a case to which the provisions of R, 2 of Order 19 of the Coda of Civil Procedure were clearly inapplicable.

20. Then, what remains to be considered is whether the procedure adopted by the Court below can be regarded as one that was permitted by the provisions of Rule 1 of Order 19, although it is clear that the learned Munsiff himself did not state that he was acting under that rule when he directed the parties to produce affidavits. It seems to me that there can be no doubt that Rule 1 of Order 19 of the Code of Civil Procedure was as inapplicable to the present case as it. 2 of that order was.

As stated in Rule 1 of Order 19 of the Code of Civil Procedure, it is plain that what the Court is empowered to do under that Rule is to order that any particular fact or facts may be proved by affidavit provided there were sufficient reasons for doing so. As further provided by that Rule that order should be made on such conditions as the Court thinks reasonable.

21. The provisions of this Rule are analogous to the provisions of Order 37 Rule 1-B of the English rules of the Supreme Court. Rule 1 of Order 19 of the Code of Civil Procedure is not a provision under which the Court may direct that a party may prove the whole of his case by the production of affidavits. What it provides is that a particular fact or facts may be proved by affidavit provided them were sufficient reasons for doing so.

Now, what the learned Munsiff did in this case was to make an order, the effect of which was that all the facts which had to be proved by the parties in the proceeding before him should bo proved by affidavits instead of their being proved by evidence produced in the ordinary way. It is clear that an order like that could never be made except by a misapplication of Rule 1 of Order 19.

22. In Ivison v. Grassiof, (1853) 7 Beav 321, in a somewhat similar situalion, the Master of the Rolls (Sir John Romilly), while referring to the 36th Section of the 15 and 16 Vict. Clause. 86, said:

'The meaning of this clause is that where there are particular facts or circumstances, which the defendant either does not dispute or has no interest in disputing, the Court, notwithstanding fhe evidence is taken orally, may give live by to prove them by affidavits. But here the plain'iff wants to prove his case by affidavits, after the defendant has said. 'I will have it proved orally'. The plaintiff must specify the particular facts and circumstances which he proposes to prove by affidavits; and I will then dispose of the mofion, after asking the defendant what he has to say to it. It may be of great importance to him to be able to cross-examine the witnesses.'

23. Mr. Chandriah, the learned advocate for the landlord explained that the learned Munsiff directed the parties in this case to give evidence by affidavit as he does not find time in his court to record evidence in such cases in the ordinary way. It is obvious that the provisions of Order 19 of the Code can never legitimately be employed as expedients for such simplification.

24. If one examines the provisions of the Code of Civil Procedure, it is seen that it refers to specific instances where the Court is expressly permitted to act upon affidavits. Those are cases like these referred to in Rule 19 of Order 5. Rules 8 to 20 of Order 11 Rule 3 of Order 32, Rules 1 and 5 of Order 38 and Rule 1 of Order 39 of the Code of Civil Procedure. These are cases in which, the production of an affidavit without more would enable the Court to act under the provisions I have referred to.

Ordinarily, except in such eases, if is obvious, that evidence has to be recorded in the manner specified in Rule 4 of Order 18 unless an order to the contrary is properly made under Rule 1 of Order 19 of the Code of Civil Procedure. As I have mentioned, in order to justify an order to that effect under that Rule, there must be sufficient reason. It is clear that if would be a sufficient reason to make an order of that kind in uncontested proceedings like these which were the subject-matter of the decisions in AIR 1954 Nag 260 and in AIR 1942 Oudh 350.

That would also be the position where the opposite party does not dispute or is not interested in disputing the facts sought to be proved by affidavit. That is the practice which is also being followed in uncontested probate proceedings and other uncontested proceedings under the Indian Succession Act. But, if a case is not a case of that kind, and the facts presented by a case, which are disputed, have to be proved, it may, perhaps, be possible in a very exceptional case, to direct a particular fact or facts in such a case to be proved by affidavit.

An exhaustive enumeration or systematic classification of the instances- in which a particular fact or set of facts could be directed to be proved by affidavit under Rule 1 of Order 19 of the Code of Civil Procedure, being unattainable, it will only be possible to refer to these very rare instances in which such an order could be made. Such instances are these which have been authoritatively summarised in 15 Halsbury's Laws of England, page 468, (Paragraph 841). While referring to these instances in which a Court could make an order allowing proof by affidavits, this is what is stated in that paragraph:

'841. Instances of orders; The following are instances where the Court has made an order allowing proof by affidavits: (1) In a suit for revocation of probate the Court allowed an affidavit made by one of the attesting witnesses eight years previously to be admitted, it having appeared that every effort had been made to find the witness. (2) At a trial on viva voce evidence an affidavit filed on an interlocutory motion was admitted, although the deponent was since deceased, and had not been cross-examined. (3) In an assessment damages by a master the Court ordered that the evidence of two witnesses resident in New South Wales should be taken on affidavit.'

25. It is therefore clear that an Order under Rule 1 of Order 19 of the Code of Civil Procedure is permissible only in exceptional circumstances. It would really be improper for a Court to make an order under that Rule, displacing for no special reason, the ordinary mode of proof injected by Rule 4 of Order 18 of the Code of Civil Procedure. It is quite undesirable and contrary to law and established practice that, in applications like the one out of which this revision petition arises and in applications like these under Rules 9 and 13 of Order 9, or Rules 58. 90, 97 and 100 of Order 2J of the Code of Civil Procedure, or in procee'ings arising, as in this case, under the Mysore, House Rent and Accommodation Control Act, the parties should be compelled to produce affidavits in proof of their cases without their being permitted to examine the witnesses in the ordinary way.

26. That being so it seems to me that the order made in this case directing the parties to produce affidavits in support of their cases was a clear misuse of the provisions of Order 19 of the Code of Civil Procedure. The order under revision which is the outcome of a patently illegal procedure adopted by the learned Munsiff is therefore liable to be set aside.

27. But, it was agreed in this Court by Mr, Narasimha Murthy and Mr, Chandriab, advocatesappearing for the parties before me, that this revision petition may be disposed of on the affidavits produced by the parties in the Court below and on the basis of these affidavits alone. It is clear that an agreement to dispense with the examination of witnesses and that a case should be decided on affidavits must further provide that such a decision should be based not only on proof based on affidavits but on affidavits alone. Such is the agreement which has been reached in this Court between the learned advocates appearing for the parties. I have, therefore, proceeded to decide this revision petition in that manner instead of remitting this case to the Court below which would merely involve unnecessary waste of time.

28. It is seen from the affidavits of Narayanappa and Thimmiah. who are the deponents of two affidavits which were produced by the tenant, that on the dale on which the main application came up for hearing before the learned Munsiff, the tenant was waiting in the verandah of the Court-Hall till 5 O'clock in the evening. The tenant's own affidavit was to the effect that he appeared in the Court when the case was called at 11-30 a.m., but that neither the landlord nor his advocate was present then.

That allegation of the tenant in his affidavit that when the case was called at 11-30 a.m. he appeared, but that the landlord did not appear, is not controverted by the affidavits produced by the landlord. The only allegation made by the deponents of the affidavits produced by the landlord is that although they were sitting in Court on that date, the tenant was not there. They also state that the tenant's advocate also did not appear.

These allegations contained in the affidavits produced on behalf of the landlord are controverted and falsified by the Judge's notes relating to that date. The record in these notes is to the effect that when the case was called the landlord was absent although Mr. Narasimhamurthy, the learned advocate for the tenant was present and moved for an adjournment.

It is clear from the record made in these proceedings that the learned Munsiff was at one stage inclined to grant the adjournment prayed for by Mr. Navasimhamurthy but that he declined to do so on the landlord pulling in his appearance, when he was writing that order, and objecting to the grant of an adjournment. Mr. Narasimha Murthy states that even that record in the Judge's notes is an erroneous entry.

He states that, on that date, he never appeared in that Court but that he was represented by some other advocate. Mr. Narasimhamurthy has stated that on that date he was lying ill in a private nursing home and that statement made by Mr. Narasimha Murtliy has very properly not been controverted by Mr. Chandriah appearing for the landlord. It is therefore clear that while one part of the record made in the Judge's notes is clearly erroneous, the other part of it, the effect of which is that some one appeared for the tenant, falsifies the affidavits produced by the landlord.

29. I see no justification for the learned Munsiff diseasing the affidavits produced on behalf of the tenant. The reasons given by him for not accepting these affidavits cannot stand scrutiny. The only ground on which he discarded the testimony of one of them was that he was not a witness in the case in which the tenant was a party and that, it was improbable that he could have been watching the Sessions trial, for doing which he was present there, in the verandah of the Munsiffs Court,whereas the sessions trial was actually going on upstairs.

It is clear from, the affidavits produced that that sessions case had become sensational and that a large number of persons were attempting to gain entry into the Court-Hall where the trial was being conducted, although the Police had made arrangements to restrict the admission into that Court-Hall.

That being so, it is clear that all these who wished to be present in the hall where the sessions trial was going on were not able to gain admission into it. There is nothing strange or improbable in Thimmiah having waited downstairs in the hope of getting admission into the Court-Hall sometime or other during the day. Neither Thimtmiah nor Narayanappa the other deponent was ever summoned by the landlord for cross-examination.

30. In my opinion, the finding of the learned Munsiff, that the tenant was not present in the premises of the Court on October 6, 1956. has to be reversed as being manifestly unreasonable.

31. This revision petition is allowed. The order under revision is set aside as also the ex parte order made against the tenant on October 6, 1956. The learned Munsiff will now take back to his file the original application made by the landlord for his eviction and dispose of it according to law. In the circumstances of this case, I make no order as to costs.

32. Revision petition allowed


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