GAGRAT & CO. Vs. ISMAIL

JUDGEMENT

(1.) THIS revision -petition is directed against an order made by the Additional District Judge of Indore under O. 38, R. 5, C.P.C. in a suit filed by the plaintiff opponent against the applicant for recovery of Rs. 10,500 on account of certain building and constructional work done by him as a sub -contractor of the defendant applicant. By the order sought to be revised the learned Additional District Judge of Indore directed the defendant to furnish security to the extent of Rs. 12,000 or to show cause on the appointed date why security should not be furnished and also made an interim order attaching an amount of Rs. 90,000 belonging to the defendant which lay in deposit with the Public Works Department of the Madhya Bharat Government.

(2.) MR . Bharucha, learned counsel for the petitioner challenges the legality of the order under O. 38, R. 5 on the ground that the learned Additional District Judge passed the order without complying with the provisions of O. 38, R. 5, C.P.C. and without there being any material before him to tenable him to be satisfied that the defendant was about to dispose of the property or was about to remove it from the jurisdiction of the Court with intent to obstruct or delay the execution of any decree that might be passed. It was urged that the affidavit filed by the plaintiff non -applicant in support of his application under Order 38 Rule 5, C.P.C. was not verified by him in accordance with law and should not have been acted upon by the lower Court. On behalf of the plaintiff non -applicant Mr. Chitale first raised a preliminary objection that even if the learned, Additional District Judge passed the order in question without complying with the provisions of O. 38, R. 5, C.P.C., the order though irregular and objectionable could not be said to be one ultra -vires or without jurisdiction; that the learned Court had jurisdiction to make the order and even if it was irregular it could not be revised under Sec. 115, C. P. C. Learned counsel for the plaintiff relied on B. Pragnath vs. Mt. Indra Devi : A.I.R. 1934 All. 456, Badri Prasad vs. Babulal : A.I.R. 1950 Cal. 368 and Mohammad Ali Ismail vs. Baldeo Singh : A.I.R. 1955 Pat 115 in support of his contention that an order for attachment before judgment passed without complying with Rules 5 and 6 though irregular and objectionable, was not ultra fires and void ab initio. He also placed reliance on Keshardeo Chamaria vs. Radha Kisen Chamaria : A.I.R. 1953 S.C. 23 to show that the order of the lower Court under O. 38, R. 5, C.P.C. was not open to revision. He then proceeded to argue that it was not necessary for the learned trial Judge to state in his order the grounds of his "satisfaction" as to the matters mentioned in O. 38, R. 5. C.P.C. and the affidavit which was filed by the plaintiff and which was properly verified, furnished sufficient material for the making of the order under revision.

(3.) IN the instant case, the only material before the learned Additional District Judge was an affidavit filed by the plaintiff on 21st September, 1953. In that affidavit the plaintiff simply stated that so far as his information went, the defendant was not a resident of Madhya Bharat; that he did not own any property in Madhya Bharat; that a contract which he had obtained for the construction of Mahatma Gandhi Memorial Medical College building had been cancelled on account of his misconduct and that he had closed his branch office in Indore. The plaintiff also stated in the affidavit that the defendant had threatened him that now that his contract had been cancelled he would withdraw the amount of his deposit with the Government and go away and that the plaintiff would not be able to recover anything. . This affidavit does not contain any verification as required by rules 26 and 27 of Chapter 1 of part 1 of Rules and Orders relating to Civil Courts issued by the Madhya Bharat High Court. It does not clearly express how much is the statement of the deponent's knowledge and how much is based on his information and belief. It does not state the grounds of belief or the source of information. The affidavit only bears the verification that it was sworn on oath. Such an affidavit is, in my opinion, valueless and cannot be acted upon (see Babulal vs. Motilal, 1952 MBLJ 402), Premraj vs. Md. Maneck : A.I.R. 1951 Cal, 156 at p. 160. In the Calcutta case it was observed that an affidavit in support of an application under O. 38, R. 5 must not be vague and must be properly verified and that where it is affirmed true to knowledge, or information or belief, it must be, said as to which portion is true to knowledge the source of information should be disclosed and the grounds for belief must be stated. The learned Additional District Judge was cot justified in basing his order on this affidavit when it was not verified properly. If this affidavit is excluded as it must be then there is no material whatsoever on which it can be held that the lower Court was satisfied that the defendant was disposing of or removing any property with intent to obstruct or delay the execution of any decree that may be passed against him. It is also noteworthy that the affidavit does not contain any statement to show that It is with the intention to defeat the plaintiff's claim that the defendant is withdrawing the amount of his deposit. All that it reveals is that the intended withdrawal of the amount is because of the cancellation of a contract in favour of the defendant and that because of this withdrawal the plaintiff will have difficulty in realising the amount in the event of a decree. This is quite different from saying that the proposed withdrawal of the amount is with intent to defeat or delay the execution of any decree that may be passed against the defendant. The order passed by the learned Additional District Judge is thus clearly one in violation of the provisions of O. 38, R. 5, C.P.C. and must be set aside.