MANGILAL RUNGTA CALCUTTA Vs. MANGANESE ORE INDIA LTD

JUDGEMENT

(1.) Points of some interest arise in this appeal by the original defendant against an ex parte decree for Rs. 3,84,375/- with future interest at 6 per cent per annum passed by the Joint Civil Judge, Senior Division Nagpur, on 21st Sept. 1978. The respondent-original plaintiff had filed a suit for damages for breach of contract in refusing to take delivery of the Manganese Ore purchased by the defendant from the plaintiff vide contract dated 5th March 1968. This suit filed in 1969 was fixed for evidence on 10th April 1978. In the early hours, it was called when the plaintiff's representative, witnesses and the counsel were present. None was present for the defendant. As a result, the following order came to be passed :-

(2.) Can a grievance about proceeding ex parte be made again in this appeal is the first point. Now order rejecting an application under O.9, R.13 is appealable under S.104 read with O.43, R.1(d), C.P.C. Undoubtedly in appeal under S.96 against the decree this grievance can be made. S.105, C.P.C. makes this position clear. Crux of the controversy is whether the same question can be allowed to be reopened in a case where other remedy has been availed of, the decision has gone against the defendant and the said decision has become final. In our view, this point must be answered against the defendant. Well recognised public policy of avoiding conflicting decisions on the same point is the reason behind this conclusion. Two High Courts (i) in the case of Badvel Chinna Asethu v. Vettipalti Kesavayya, AIR 1920 Mad 962 and (ii) Munassar Bin v. Fatima Begum, AIR 1975 Andh Pra 366 have taken the same view and it has our respectful concurrence.

(3.) Second point urged is that no Court in exercise of power under O.19, R.1, C.P.C. 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. O.18, C.P.C. deals with the subject of hearing of the suit and examination of witnesses and R.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 (S.1) and defines the term "evidence" (S.3). Now, these two basic features of our two procedural laws, are not without permissible exceptions. S.30(c), C.P.C. 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 C.P.C., instances of express permission to act merely, on affidavits can be sorted out e.g. O.5, R.19, O.11 Rules 5 to 20, O.32 R.5, O.38 Rules 1 and 5. Order 39 Rules 1 and 2.19 generally deals with the subject of "Affidavits" and the manner and circumstances in which departure from O.18 R.4 can be made by any Court. O.19, R.1 is a general power and R.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 R.1, the terminology "fact or facts" used therein may be noticed. Now 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 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 O.18, R.4. Needless to mention that ex parte matters would stand on somewhat different pedestal and in relation to them discretion under O.19, R.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.