SUNDER Vs. DURGI

JUDGEMENT

(1.) ON 11 -5 -1972 an application was presented to this Court on behalf of the appellants under O. 22 R. 4 read with O. 22 R. 11 C. P. C. saying that Mst. Durgi respondent No. 1 died in the month of March, 1970 leaving her husband, one son, and two daughters named in the application as her legal representatives. It was prayed that these legal representatives be substituted in place of the deceased respondent, the minors being shown under the guardianship of their father. Alongside an application was made under section 5 of the Limitation Act for condonation of delay. Accompanying this application were two affidavits, one sworn by the appellant, Sunder and, the other sworn by his advocate Mr. D. D. Thakur. The legal representatives of the deceased -respondent resisted the application. In their objections they admitted that Mst. Durgi died in the month of March, 1970 but combined this admission with certain averments which purported to suggest that there was no sufficient cause for extension of time. In the course of proceedings on the application the appellants produced an affidavit sworn by Mr. Mohammad Abdullah Malik advocate to supplement the two affidavits already placed on file by them. The legal representatives of the deceased respondent have neither asked for cross -examination of the deponents nor produced any counter affidavit nor also examined any oral evidence. I have heard counsel for the parties.

(2.) FROM the affidavits filed by the appellants, it is proved that on 22 -4 -1970 the appellant, Sunder, brought the fact of the death of Durgi to the notice of Mr. Mohammad Abdullah Malik, Advocate, Ramban who drafted an application and the accompanying affidavit for bringing on record the legal representatives of the deceased -respondent; that the application and the affidavit having been duly completed were sent on the same day by the appellant to his counsel at Jammu namely Mr. D. D. Thakur, Advocate under a registered cover ; that the registered letter did not reach Mr. D. D. Thakur ; that Mr. Thakur did not otherwise also know about the death of Mst. Durgi up to 8 -5 -1972 when the news was broken to him by the appellant, Sunder, who was meanwhile sent for by his clerk to give particulars about another respondent in the case namely Mst. Durgi: and, that the fact of the death was not even known to the counsel for the deceased respondent who meanwhile appeared in the case on her behalf right up to 8 -5 -1972. There is nothing on the other side to rebut these affidavits. In this background I am of the opinion that the appellants have acted with due care and caution and that the delay in the submission of the application for bringing the legal representatives on record was not willful and proceeded from an honest and bona fide belief that a similar application sent by them to their Advocate at Jammu must have reached him and must have been filed by him in who Court within time. In that view I am inclined to condone the delay, of course on payment of reasonable costs.

(3.) THE learned counsel for legal representatives, Mr. Sehgal, however, urged that the affidavits filed by the appellants could not be acted upon as there was no order of the Court nor even an application of the appellants for receiving these affidavits in evidence as required under O. 19 of the Code of Civil Procedure. This raises the question whether an order or an application is the sine -quo -non before a Court can act upon an affidavit. An identical question arose in Kanhaiyalal V. Meghraj Ramkaranji (A. I. R. 1954 Nagpur, 260). It was a revision directed against the order of the Court below restoring the file of a small cause suit which was dismissed for default. The order was made by the Court on the strength of an affidavit which was produced by the plaintiff. The contention raised in the revision petition was that the affidavit was improperly regarded as evidence by the Court below as there was no order of the Court receiving the affidavit in evidence. The learned judges (Sinha C. J. and Hidayat -ullah J.) who heard the revision laid down that the order receiving an affidavit is tantamount to ordering it and complies with the law. In this their Lordships were guided by the view taken by Ghulam Hasan J. in Shi.b Sahai v. Tika (A. I. R. 1942 Oudh, 350). The learned Judge, in the course of his judgment, while referring to the provisions of his judgment, while referring to the provisions of R. 1 O. 19 of the Code of Civil Procedure observed: - "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 O. 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 defendants 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 moto think it necessary to order the plaintiffs 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 plaintiffs 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 D. 19, Rr. 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 D. 19. Rr. 1 and 2, he would not have expressed the opinion which he did, that the affidavit was no evidence of the facts alleged therein." In M/S Shamsunder Rajkumar v. Bharat Oil Mills Nagpur (A. I. R. 1964 Bombay 38) the question again was whether affidavits filed in support of an application and received by the Court could be read in evidence.. It held following the Nagpur case (Supra) that an order receiving the affidavits amounted to passing an order under O. 19 and complied with the law. Mr. Sehgal contended that the Supreme Court had taken a contrary view in case Khandesh Spinning and Weaving Mills & Co. Ltd. Jalgaon v. Rashtriya Girmikamgar Sangh, Jalgoan (A. I. R. 1960 S. C. 571). The contention does not seem to be correct. It was a case under the Industrial law. Incidentally it was observed by the Court that the Industrial Courts could like the Civil Courts conveniently follow the procedure prescribed in O. 19 and allow fact or facts to be proved by affidavits subject to the conditions laid down in O. 19. There is nothing in the decision to indicate that an order receiving an affidavit does not amount to ordering it. I am in respectful agreement with the view taken by the Nagpur and Bombay High Courts and hold that when an affidavit is received by the Court without any objection from the other side the order amounts to an order passed under O. 19 R. lor R. 2 as the case may be and complies with the law. After all it is not fair that an affidavit received by the Court without any objection from the other side should be rejected in the end on the simple ground that no prior permission for filing the same was obtained. The interests of the other side are amply safeguarded. It can ask for the deponent to be produced for cross -examination and if it does not choose to adopt that course it cannot be heard to say at the end that the affidavit should be rejected because there was no express order for its production. In this view I find no force in the objection raised by Mr. Sehgal which I overrule.