1. On 1st April, 1942, the State of Punjab obtained a money-decree for Rs. 2661.15 paise against Tilak Ram and Sons of Ludhiana. This decree was confirmed by this Court in Second appeal on 13th February, 1962. Thereafter, the decree-holder took out execution on 1st May, 1964. The execution application was dismissed in default on account of the non-appearance of the decree-holder on 5th October, 1968. The decree-holder on 8th October, 1968, filed a restoration application under Order 9, Rule 4, Code of Civil Procedure. Notice of this application was given to the judgment-debtor for 17th May, 1969. On that date the said application was also dismissed in default on account of the non-appearance of the decree holder and it was stated that the process-fee had not been filed by the decree-holder for effecting service on the judgment-debtor. On 19th May, 1969, another application under Order 9, Rule 4, Code of Civil Procedure, was made for the restoration of the application dated 8th October, 1968, which had been dismissed in default on 17th May, 1969. It was stated therein that the restoration application was not listed in the cause list for 17th May, 1969. Maharaj Krishan, a Clerk of the Government Pleader, Ludhiana, then contacted the Ahlmad and the Reader of the Court on behalf of the decree-holder for putting up the said application before the Court. They replied that the file would be traced and the case would then be fixed for 7th June, 1969, for service on the judgment-debtor. On 19th May, 1969, Maharaj Kishan contacted the Reader and Ahlmad of the Court to find out the next dated fixed in the case and while doing so, he came to know that the application had been dismissed in default on 17th May, 1969. The process-fee had been paid within time on 24th March, 1969. Under these circumstances it was prayed that the said application be restored.
2. This application was contested by the judgment-debtor was dismissed by the trial Court, which held that though the said application was within time, but there was no sufficient cause for its restoration.
3. When the matter went in appeal before the learned Additional Dist. Judge, Ludhiana, he reversed the finding of the trial Court on the second issue framed in the case, namely, whether there was sufficient cause for the restoration of the application. He came to the conclusion that there was sufficient cause for the restoration of the said application. The finding on the other point, namely, whether the application was within time or not, was not challenged before the learned Judge. As a result, he accepted the appeal and restored the said application. Against the order, the present revision petition has been filed by the judgment-debtor.
4. The only argument urged by the learned counsel for the petitioner is that there is no evidence on the record in support of the finding of the lower Appellate Court that there was sufficient cause for the restoration of the application. It was conceded that there was the affidavit of Maharaj Krishan filed in support of the application for restoration and except that there was no other evidence, which would form the basis of the finding given by the learned Additional District Judge. He, therefore, contends that the said finding be reversed.
5. The factual position in the instant case is, that in para No. 2 of the restoration application, it was mentioned that the said application was supported by the affidavit of Maharaj Krishna, Clerk of the Government Pleader, Ludhiana, and that it was not listed in the cause-list for 17th May, 1969. There are on the record two replies given by the judgment-debtor-petitioner to the application for restoration. The first is dated 17th July, 1969, in the heading of which it is mentioned 'Written reply of Judgment Debtor Tilak Ram Chaudhri--to the application dated 19th May, 1969, of the Punjab State. 'In paragraph 2 thereof, it was stated 'Denied for want of knowledge'. It may be stated that this reply was not supported by any affidavit of the petitioner. The other reply, which is supported by an affidavit, is dated 27-8-1969. In paragraph 2 of this reply it was mentioned, ' As no such alleged application was on record and file of the case, so the peshi list for 17-5-1969 did not list it.' Thereafter on 22-4-1970, two issues were framed on the second out of them was whether there was sufficient cause for the restoration of the application. In support of its case, the State of Punjab produced Pawan Kumar, Ahlmad of the Court of the Subordinate Judge, as AW 1. This witness brought the peshi register of the Court which revealed that on 17-5-1969 this case was entered therein for the presence of the parties. Regarding the cause list for that date he deposed that it was not available. According to him, Ram Rattan was the Reader of the Court on the relevant date, but he was now posted at Jagraon. In cross-examination he stated that it was mentioned in the peshi register that the case was dismissed for default on 17-5-1969. He also admitted that he was not the Ahlmad in the Court of the learned Subordinate Judge at the relevant time, because at that time he was posted in the Court of the 1st Additional District Judge, Ludhiana. After examining this witness, the Government Pleader closed his evidence. After that the judgment-debtor himself made a statement that 'he closed his rebuttal'.
6. I have already said that the restoration application was supported by the affidavit of the Clerk of the Government Pleader and one of the replies to that application, which is dated 27-8-1969, was supported by the affidavit of the judgment-debtor. So it comes to this that on the record there were two affidavits and the evidence of Pawan Kumar. The trial Judge, while deciding issue No. 2, was of the opinion that so far Pawan Kumar was concerned he had not been able to prove the ground for restoration pleaded by the Punjab State, namely, that the said application was not entered in the cause list for 17-5-1969. He went on to observe that no evidence had been led by the State to prove that fact, but rather the statement of Pawan Kumar Ahlmad showed that the case was fixed in peshi register for 17-5-1969. The file of the case actually came up in the peshi of that date and it remained pending up till 4.30 p.m. and since none appeared on behalf of the decree-holder, i.e., the Punjab State, the said application was dismissed in default. So far as the affidavit of Maharaj Krishan was concerned, the learned Judge was of the view that he had not come into the witness box to swear that he actually contacted the Reader or the Ahlmad of the Court on 17-5-1969. Regarding his affidavit, the learned Judge went on to observe--'The fact that the file came up before the Presiding Officer on 17-5-1969 and he dismissed the application at 4.30 p.m. shows that the file was in Peshi on that day. Had Maharaj Krishan contacted the Reader or the Ahlmad, they must have told him that the file was in the Peshi. The contention of Maharaj Krishan that when he contacted the Reader and Ahlmad he was told that the file will be traced up, does not, therefore, appear to be correct because the file was in the 'Peshi'. Had the file been not in the Peshi, it could not have been put up before the Presiding Officer on that day.' The learned Judge then concluded that the state had failed to discharge the burden of that issue and prove that there was sufficient cause for the absence of the Government Pleader on behalf of the decree-holder on 17-5-1969. As a result he decided that issue against the State.
7. When the matter came in appeal before the learned Additional District Judge, he came to the conclusion that for all intents and purposes the affidavit filed by Maharaj Krishan along with the restoration application ought to be treated as sworn testimony of the appellant and, therefore, it would not be said that the State had not produced any evidence in support of the application, so long as the sole affidavit of Maharaj Krishan remained uncontroverted on the record. As regard the affidavit filed by the judgment-debtor, the learned Judge observed that after going through it he found that it was incorrect and false in various respects in so far as the very fact that an application for restoration of the case was pending in the Court on 17-5-1969 was denied. The learned Judge also mentioned that para 2 of that affidavit, in fact, admitted the contents of para 2 of the affidavit filed by Maharaj Krishan in which it was stated that the Peshi list for 17-5-1969 did not show the case. On that basis the learned Judge concluded that there was a clear admission in the affidavit filed by the judgment-debtor that the case was not actually listed on the cause list of 17-5-1969. After having said that, the learned Judge immediately thereafter observed: 'be that as it may, the averments made in this affidavit were obviously incorrect.' Later on the learned Judge also held that it could not be said that the facts contained in the affidavit filed by the State were contradicted or controverted by any proper evidence produced on the record by any proper evidence produced on the record by the judgment-debtor and, therefore, the affidavit filed alongwith the restoration application had remained uncontroverted and this piece of evidence ought to have been admitted by the trial Court for consideration. Then, after believing the allegations made in the affidavit, the learned Judge observed that the same was good evidence under the Evidence Act since it had not been rebutted by proper evidence from the side of the judgment-debtor, the issue was decided in favour of the State. It may be mentioned that the learned Judge was also of the view that the cause list for that date was not pasted outside the Court and, therefore, the Punjab State could not suffer on account of the fault of the officials of the Court concerned.
8. The point that falls for decision in this case is whether the Punjab State had been able to establish that there was sufficient cause for the non-appearance of their counsel on 17-5-1969. This question, like any other fact had to be established by producing reliable evidence on the record. It was argued by the learned counsel for the State that the judgment-debtor had admitted the ground for restoration alleged by the decree-holder, namely, that their non-appearance on the date of hearing was due to the fact that the said case had not been shown in the cause list pasted outside the Court room. If this argument was correct, then obviously the question of deciding the ground for restoration would not have arisen and possibly there would have been no necessity of even framing any issue on this point in the case. The learned Judge would, then, have recorded the admission of the judgment-debtor and proceeded to hold that there was sufficient cause for the non-appearance of the decree-holder on the relevant date. But that was admittedly not done.
The judgment of the lower Appellate Court also shows that the finding was not based on any admission of the judgment-debtor. This apart, it is also difficult to understand as to how the Court could come to the conclusion that there was any admission on this point by the judgment-debtor. As I have already said, there were two replies given by him to the restoration application. In the first, the contents of para No. 2 of the restoration application were denied for want of knowledge and, therefore, it could not be said that he had admitted that the case was not shown in the cause list on that date, which was the ground for restoration alleged by the decree-holder in his application for restoration. It is true that on the basis of the second reply, it could perhaps be argued that the judgment-debtor had, in a way admitted that the case was not shown in the cause list of 17-5-1969, but the various averments in para No. 2 of the reply could not be read in isolation, because, according to the previous sentence in this very paragraph, it was mentioned that the restoration application was not on the record of the case. Moreover, the learned Judge had, after discussing this reply, come to the conclusion that the affidavit filed in support thereof was false. Besides, after having held that whatever was contained in the affidavit was not correct, the learned Judge could not have, on the strength of that very affidavit, base the admission of the judgment-debtor. If his averments in the affidavit had to be taken into consideration, then they must be taken as a whole. In that eventuality, it should have been held that there was no restoration application filed by the decree-holder as alleged by the judgment-debtor. It that be so, then there was no question of even restoring the same. Be that as it may, as I have already, said, the learned Judge has not proceeded on the basis of any admission on the part of the judgment-debtor.
We are then left with the affidavit of Maharaj Krishan, clerk of the Government Pleader and the statement of Pawan Kumar, the Ahalmad of the Court, in support of the restoration application. So far as the Ahlmad is concerned, it cannot be said on the basis of his evidence that the case was not shown on the cause list of the day. As a matter of fact, all that he stated was that the case was shown in the peshi register. But since he had no deposed that it was shown in the cause list of that day, because according to him the said list was not available, an argument was raised that a presumption should be drawn that the case did not actually appear on the cause list for the reason that if it had been so, the said list would have been made available by the Court officials. This argument, however, pre-supposes another fact, namely that it was the duty of the officials not only to show all the cases fixed for the day in cause list, but also that the said list had to be permanently maintained by them. The learned counsel for the State referred to the Punjab High Court Rules and Orders, Vol. I Chap I-A, Rule 6, according to which the cause list had to be prepared every day by the Court officials. But he was unable to show that there was any rule under which the said list had also to be maintained afterwards by those very officials. So it is to be assumed that there is no rule under which the cause lists prepared for the day have also to be maintained by the Court concerned. Under these circumstances, no presumption of any kind can be drawn in favour of the Punjab State on the basis of the non-availability of the cause list.
9. Then we are left only with the affidavit of Maharaj Krishan in support of the restoration application. It may be noted, that a question of fact can be proved by the production of oral or documentary evidence or both. Admittedly, there is no documentary evidence in this case and, therefore, the Punjab State could succeed by producing oral evidence. According to Section 59 of the Indian Evidence Act, all facts, except the contents of documents, may be proved by oral evidence. Under Order 18, Rule 4 of the Code of Civil Procedure, which deals with the witnesses to be examined in open Court, in evidence of the witnesses has to be taken orally in open court, in the presence and under the personal direction and superintendence of the Judge. Concededly, Maharaj Krishan has not come into the witness-box. As regards his affidavit, reference be made to Order 19, Rule 1, according to which any court may, at any time, for sufficient reason, order that any particular fact or facts 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. No such procedure was adopted by the Court in the instant case. The Supreme Court, in 'Khandesh Spg. & Wvg. Mills Co. Ltd. v Rashtriya Girni Kamgar Sangh (1960) 2 SCR 841=(AIR 1960 SC 571) at page 848 observed: 'A combined effect of the relevant provisions in that ordinarily a fact has to be proved by oral evidence, but the courts subject to the conditions laid down in Order XIX may ask a particular fact or facts to be proved by affidavits.' As I have already said, it has not been proved in the present case that the trial Court had asked this particular fact which is put in issue No. 2, to be proved by affidavits. That being so, we have to rule out of consideration this affidavit and if that is done, then, obviously, there would be no evidence on the record on the basis of which it could be held that the Punjab State had proved a fact, namely, that there was sufficient cause for their non-appearance on the date of hearing.
10. In view of what I have said above, I would accept this petition, set aside the impugned order and restore that of the trial Court. In the circumstances of this case, however, the parties are left to bear their own costs throughout.
11. Petition allowed.