1958 (11) TMI 42 - HC - Indian Laws

Court overturns eviction order, rules affidavits can't replace oral evidence. Tenant's evidence valid.

The court held that the Munsiff's order directing parties to prove their case solely by affidavits was improper as affidavits alone could not replace oral ... - Issues Involved:1. Competence of the Munsiff to direct parties to prove their cases by affidavits.2. Material irregularity in relying on affidavits produced by the landlord and discarding those produced by the tenant.Detailed Analysis:1. Competence of the Munsiff to Direct Parties to Prove Their Cases by Affidavits:The primary issue was whether the learned Munsiff had the power to direct the parties to prove their allegations by the production of affidavits. The tenant contended that the Munsiff had no such power and that the evidence should have been recorded viva voce in open court as per Rule 4 of Order 18 of the Code of Civil Procedure. The Munsiff did not specify the provision of law under which he made the order for evidence by affidavits.The court examined Rule 1 and Rule 2 of Order 19 of the Code of Civil Procedure. Rule 1 allows the court to order that any particular fact or facts may be proved by affidavit for sufficient reason, provided that if either party bona fide desires the production of a witness for cross-examination, such an order should not be made. Rule 2 allows evidence to be given by affidavit upon any application, but the court may order the attendance of the deponent for cross-examination.The court noted that affidavits could be treated as evidence only if there was an agreement between the parties or if the court made an order under Rule 1 of Order 19. In the absence of such an agreement or order, affidavits alone could not replace the oral evidence required by Rule 4 of Order 18. The court also highlighted that Rule 2 of Order 19 applies not only to interlocutory applications but also to substantive applications, as established by various precedents.The court concluded that the Munsiff's order directing the parties to prove their entire case by affidavits was a misuse of the provisions of Order 19. The proper procedure would have been to record evidence viva voce unless there was a specific order under Rule 1 of Order 19 for particular facts to be proved by affidavit.2. Material Irregularity in Relying on Affidavits Produced by the Landlord and Discarding Those Produced by the Tenant:The tenant argued that the Munsiff acted with material irregularity by depending on the affidavits produced by the landlord and discarding those produced by the tenant. The court reviewed the affidavits and the circumstances under which they were produced. The tenant's affidavits stated that he was present in court on the date of the ex parte order, but his advocate was absent due to illness. The landlord's affidavits contradicted this, stating that the tenant was not present in court.The court found that the tenant's presence in court was supported by the Judge's notes, which recorded that the tenant's advocate had moved for an adjournment. This contradicted the landlord's affidavits. The court also noted that the landlord's deponents were not summoned for cross-examination, which weakened the credibility of their affidavits.The court held that the Munsiff's decision to discard the tenant's affidavits was unreasonable and that the tenant's presence in court on the relevant date was established. Consequently, the ex parte order for eviction was set aside.Conclusion:The revision petition was allowed, and the order under revision was set aside. The ex parte order made against the tenant was also set aside. The Munsiff was directed to take back the original application made by the landlord for eviction and dispose of it according to law. No order as to costs was made.