- (1.) THIS is a defendant-tenants revision petition under Section 115 of the Civil Procedure Code against the order dated 11. 05. 1993 passed by Addl. District & Sessions Judge, Nimbaheda in Civil Misc. Appeal No. 24/92, confirming the order dated 6th Jan. 1988 passed by Munsif & Judicial Magistrate, Nimbaheda in Civil Original Suit No. 158/81.
(2.) IN the suit which was filed for eviction and the recovery of the arrears of rent way back in the year 1981, an order was passed on Jan. 3, 1984 with regard to the determination of the rent under Section 13 (3) of the Rajasthan Premises (Control of Rent & Eviction) Act. An application was moved by the landlord-plaintiff under sec. 13 (5) of the Act on 27. 05. 1987 and this application filed by the plaintiff-landlord under Sec. 13 (5) was decided by the Munsif & Judicial Magistrate, Nimbahera striking off the defence of the defendant-tenant on the ground of three defaults as under : - (i) late payment of the rent determined under Sec. 13 (3) days for the rent which was deposited on 23. 2. 84 instead of 20. 2. 84; (ii) rent for the period 9. 4. 86 to 8. 05. 1986 was deposited by a delay of 5 days; (iii) the rent for the period 9. 1. 84 to 8. 03. 1984 had not been paid at all. So far as the first two defaults are concerned, the parties are not at disputes on factual aspect of the matter and all that which has been submitted by Shri Bhandari is that the maximum period within which the due amount of rent may be permitted to be deposited is 3 months whereas his client has committed the default in late payment of the rent by 3 days and on second occasion by 5 days and Mr. Bhandari has also submitted that there is ample authority of law to take a flew that in such matters the court has to take a liberal view and even in cases where the due amount of rent is deposited within a period of 3 months, the default is to be condoned. So far as the third ground of default is concerned, it is pointed out before me that the application had been filed by the plaintiff for striking off the defence and the defendants had filed a reply thereto. The stand taken by the defendant tenants before the trial court in reply to the application" for striking off the defence was that the amount of rent for the period 9. 1. 84 to 8. 03. 1984 had been paid under receipt from the counsel for the plaintiff and that the receipt had been lost. Thereupon an affidavit was filed by the counsel for the plaintiff, Shri H. M. Jain Advocate that no amount of rent whatsoever for the period of 9. 1. 84 to 8. 03. 1984 had been paid to him and no receipt had been issued, and therefore no question of any receipt in token of the payment. The trial court passed the detailed order dated 6th Jan. 1988 striking out the defence of defendant-tenants. Against the order dated 6th Jan. 1988 an appeal was preferred by the defendant-tenants before the Additional District Judge, Nimbaheda and this appeal No. 24/92 came to be decided on 11. 05. 1993 and the same was rejected. Before the appellate court the defendant-tenants improved/extended their plea and submitted that the amount of rent for the period 9. 1. 84 to 8. 03. 1984 was first paid by them to their lawyer and their lawyer had in tern paid it to the counsel for the plaintiffs and had also obtained the receipt but the same had been lost. Against this order dated 11. 05. 1993 read with earlier order of 6th Jan. 1988 referred to hereinabove, this revision petition under Sec. 115 CPC has been preferred before this court. With regard to the delay of 3 days and 5 days in the payment of the rent Mr. Bhandari placed reliance on (1), Roop Narain Vs. Moorti Mandir Sita Ram Ji. Jamna Lal Vs. Kanhaiyalal (3), J. K. Motors vs. Bhagwati Narain & 1980 RLW page 42 (4)In all these cases the default in depositing the amount of rent determined under Sec. 13 (3) by a few days but short of period of 3 months has been considered and the view has been taken that in such matter the court should proceed with a liberal orientation and the defence may not be struck off in the appropriate cases. Nevertheless each case has to be decided on its own fact. In view of this position of law the first two defaults (which have also been considered by the courts below) may be ignored. Mr. Maheshwari has emphatically argued that so far as the third ground of default is concerned, no earlier payment has been made even till this date for the period 9. 1. 84, to 8. 03. 1984 and the petitioner has not come with a candid disclosure of the case. Mr. Bhandari has submitted that in the instant case the trial court has committed a grave error in considering the affidavit filed by the counsel for the plaintiffs as an evidence. He has raised twin contentions in this regard as under : -. (i) His submissions is that the passing of an order under Order 19 Rule 1 & 2 CPC is a condition precedent and pre requisite so as to consider affidavit as an evidence. In the facts of this case no such order had been passed by the trial court under Order 19 rule 1 & 2 C. P. C. ; (ii) In wan of prior order under Order 19 rule 1 & 2 CPC the affidavit is no evidence within the meaning of Sec. 3 of the Indian Evidence Act and therefore the order passed by the trial court striking off the defence on the basis of the affidavit filed by the counsel for the plaintiff is nullity. Mr. Bhandari has placed reliance in support of his arguments on Sudha Devi Vs. M. P. Narayan (5) & Jagdish Vs. Premalata Rai (6 ).
(3.) MR. Dinesh Maheshwari on the other hand has contended before me that the contentions raised by MR. Bhandari before this court were never raised either before the trial court or before the appellate court and therefore such contentions should not be entertained in these proceedings under Sec. 115 of the Code of Civil Procedure. MR. Maheshwari has also distinguished Sudhadevi's case (supra)on the basis that it was a case in which the affidavit was sought to be filed before the Supreme Court to fill up the lacunae in the oral evidence and it was in this context that the Supreme Court observed in para No. 4 of the decision in Sudha Devi Vs. M. P. Narayan that the plaintiff cannot be allowed to fill up the lacunae in the evidence belatedly at the Supreme Court stage and that the affidavits are not included in the definition of evidence under Sec. 3 of the Evidence Act and the same can be used as evidence only for sufficient reasons if the court passes an order under Or. 19 rule 1 & 2 CPC. Thus, the observations made by the Supreme Court in Sudha Vs. M. P. Narayan (supra) have to be considered and applied in the context in which the same were made, and it may also be pointed out that the Supreme Court decision is in a matter in which the decree had been passed and at Supreme Court stage by way of filing an affidavit the oral evidence was sought to be supplemented. I have gone through the aforesaid authority and find myself in agreement with Shri Maheshwari because the Supreme Court had declined to consider the affidavit which had been filed after the passing of the decree to fill up the lacunae in oral evidence at a belated stage before the Supreme Court and it was in the context of the facts of that case as above that the Supreme Court did not allow the affidavit to be considered as a part of the evidence. There may not be any quarrel with the legal proposition that affidavits are not included in the definition of evidence under Sec. 3 of the Evidence Act and they cannot be read in evidence in absence of an order under Order 19 rule 1 & 2 CPC. Order 19 rule 1 & 2 CPC are reproduced as under: - R. l : Power to order any point to be proved by affidavit. Any Court may at any time for sufficient reason order that any particular fact or facts may 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; Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross- examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit. R. 2 : Power to order attendance of deponent for cross-examination. (1) 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. (2) Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court, or the Court otherwise directs. A perusal of provisions of Order 19 rule 1 & 2 would show that they are in the nature of enabling provisions and confer power upon the court to order at any time for sufficient reason that any particular fact or facts may be proved by affidavit or that the affidavit of any witness may be read in evidence at the hearing, on such conditions as the court think reasonable, but that does not mean that even for the purpose of deciding the miscellaneous applications and while passing the orders on various applications during the course of trial, the trial court must pass an order in advance under Order 19 rule 1 & 2 CPC so as to consider the affidavit. There are catena of cases in which various High Courts Supreme Court have taken the view that miscellaneous applications may be decided and interlocutory orders may be passed on the basis of affidavit evidence and legal requirement as has been pressed before me by Shri Bhandari has not been considered as a condition precedent of a pre requisite and therefore this contention raised by Shri S. R. Bhandari fails and is hereby rejected. Besides this, I find that in the instant case, no such objection was raised by the defendant-tenants before the trial court at the time when the application under Sec. 13 (5) was taken up for agreements. So far as the defendant- tenants are concerned the controversy with regard to the payment of the rent to the counsel for the plaintiffs under a receipt and thereafter that it was paid to his own lawyer and then through him to the counsel for the plaintiffs has been raised on the basis of a bald averment (not even supported by the affidavit of his lawyer) in the reply to the application under Sec. 13 (5) and naturally the plaintiff was left with no alternative but to file an affidavit of his counsel to the effect that neither the rent for the period 9. 1. 84 to 8th March 1984 had been received nor any receipt had been passed on. The healthy traditions are that even if an statement is made at Bar by the learned counsel it is to be accepted. Here was a case in which there was an affidavit of the learned counsel against the bald averment of an interested litigating party in the reply to the application and there was no legal impediment in considering such affidavit and it was not at all unsafe to place reliance upon it. The facts of this case in entirety leave an impression on the mind of reader or listener to these facts that the defendants-tenants have been interested only in prolonging the matter and to gain time. The order was passed with regard to the determination of rent under Sec. 13 (3) on 3. 1. 84 and now in the year 1993 also the matter is hanging fire in as suit for eviction and recovery of rent at the stage of challenge to the order dated 6. 1. 1988 whereby the defence of defendant-tenants had been struck off. An indelible imprint is left on the mind as if the defendant-tenants have tried to trip not only the, party but also the court. If at all, its arguments based on order 19 rule 1 & 2 CPC and Sec. 3 of the Evidence Act is to be accepted, the question at once arises as to was it not the duty of the defendant-tenants to raise the objection against the consideration of the affidavit when the matter was on the application under Sec. 13 (5) or to ask for the cross-examination of the deponent under Order 19 rule 2 CPC or to say out press that he wanted to lead evidence on the question of payment of the rent for the period 9. 1. 84 to 8. 3. 84 instead of doing so the matter was allowed to proceed further without raising little finger and now a ground retained in the sleeve is sought to be used to assail the order dt. 6. 1. 1988. Thus is appears that the defendant-tenants have not acted fairly in the facts of the case. It is expected form any litigant party to be fair, if not to its opposite party, at least to the court. Air 1990, Rajasthan P. 87 (Supra) was a case in which the court considered that the affidavits cannot be used as an evidence to prove a particular fact. It was a case in which the decree had been passed solely and wholly on affidavits by the court without passing any order under order 19 rule 1 & 2 CPC in advance and it was in this context that a single bench of this court while referring to the provisions of Section 3 of the Indian Evidence Act held that the oral evidence can only be limited to the statements recorded before the court or the affidavits produced before the court under its directions. In this case also page 1381 (supra) and I am of the considered opinion that this case, has no application to the facts of the present case Mr. Bhandari has submitted that in this Rajasthan case (supra) the objection had not been taken at the trial stage and yet it was entertained by the High Court. The fact cannot be lost sight of that there is a vast difference if a decree is passed solely and wholly on affidavits and the cases in which the miscellaneous applications are decided during the course of trial. If the provisions of Order 19 rule 1 & 2 of Civil Procedure Code read with Sec. 3 of the Evidence Act are applied in the manner in which the same have been pressed by Mr. Bhandari even for the purpose of deciding interlocutory or miscellaneous applications of the nature as in the case at hand, it would prolong the proceedings unusually and unnecessarily and the same is likely to be misused so as to abuse the process of the court and any litigating party which is interested in prolonging the matter would misuse the same and therefore apart from and in addition to the question of correct interpretation and the comprehension of the correct import of the law, for reasons of expediency also this argument has to be rejected. ;