Dave, J. - (1.) BOTH these revision applications noted above arise out of the same order of the learned Senior Civil Judge, Churu, dated 3. 9. 55 and therefore they are disposed of together.
(2.) THE facts giving rise to these applications are that Gordhan plaintiff filed a suit for sale of mortgaged property valued at Rs. 4750/-in the court of the Civil Judge, Churu, on l9. 1. 52, against three persons namely, Shri Niwas and Banarsilal, sons of Ghasi Ram and Mst. Mani Devi widow of Ram Kumar. An ex parte preliminary decree was passed against the said defendants by the learned Civil Judge, Churu, on 19. 5. 52. THEreafter, a final decree was also passed on 17. 3. 53. THE plaintiff, decree holder took out execution of the decree. THE mortgaged property was put to auction and it was purchased by the decree holder himself. THEreafter, on 7. 7. 54 an application was presented by defendants Shri Niwas and Banarsilal for setting aside the ex parte decree. It was stated in the application that they were never served with summonses and the ex parte proceedings taken against them were therefore illegal. It was further stated that they had come to know of the decree on 17. 6. 54 and that the application was therefore within time computed from the date of their knowledge. It was prayed that the ex parte decree should be set aside. This application was contested by the plaintiff on the ground that there was a proper substituted service on the said two defendants, that they had come to know of the decree much earlier than 17. 6. 54, that during the course of the execution proceedings, the judgment debtors had started negotiations through Kedarnath Bajaj for paying up the decretal amount by instalments, that they had therefore knowledge of the decree and their application was time barred. The trial court thereupon framed two issues and after recording some evidence came to the conclusion that the defendants were not duly served, that they had come to know of the decree on 17. 6. 54 and therefore their application for setting aside the ex parte decree was presented within the period of limitation. The learned Civil Judge therefore allowed the defendants' application and set aside the ex parte decree on payment of costs by the defendants to the plaintiff. It is against this order dated 3. 9. 55 that both the parties have filed revision applications. Revision application No. 252 has been filed by the plaintiff. His learned counsel has urged that the trial court has committed material irregularity in exercise of its jurisdiction in coming to the conclusion that the defendants were duly served before ex parte proceedings were ordered against them. It is further urged that at any rate, the defendants had knowledge about the decree long before 17. 6. 54 and that the trial court has committed irregularity in relying upon the mere affidavit of the defendants and basing its conclusion on no evidence. Revision application No. 250 has been filed by the defendants and their learned counsel has urged that the trial court ought not to have ordered his clients to pay costs to the plaintiff. It is contended that the court had came to a definite conclusion that they were not duly served before ex parte proceedings were started against them and therefore they could not be rightly saddled with costs. It is obvious that if the revision application of the plaintiffs succeeds, the revision application filed by the defendants cannot stand and therefore it would be proper to decide the plaintiff's application first. It is clear from what has been stated above that two points which arise for determination are as follows: - (1) Whether the defendants were duly served before ex parte proceedings were ordered against them on 2. 3. 52? (2) Whether the defendants had knowledge of the decree on 17. 6. 54 and their application was within time? Regarding the first point it has been pointed out by petitioner's learned counsel that summonses to the defendants were ordered to be issued on 16. 2. 52 for their appearance on 15. 3. 52 and when they could not be served personally, notices to them were published in Hindustan under the trial court's order dated 15. 3. 52. According to learned counsel, this was sufficient substituted service and the trial court was therefore justified in passing an order for ex parte proceedings on 2. 4. 52. I have given due consideration to this argument and I find that it is not tenable. It appears from the order-sheet of the trial court that the case was registered on 22. 1. 52 and summonses were ordered to be issued to the defendants for their appearance on 16. 2. 52. The copies of the summonses which are on record, show that the process server returned them to the court with an endorsement that defendants Shri Niwas and Banarsilal were not to be found at Churu and that he was informed that they had gone to Calcutta. On this report, the trial court passed an order on 16. 2. 52 to the effect that the plaintiff should furnish the addresses of the defendants and that he should also put in expenses for serving the defendants by registered post. The file was to be put up on 15. 3. 52. The order-sheet of 15. 3. 52 further shows that on that date, the plaintiff presented an application for leave to amend the plaint which was allowed. He presented another application saying that he had come to know that the defendants had gone either to Ranchi or to Calcutta, that he had tried his best to find out their addresses, but he could not know anything further. He, therefore, prayed that their notices should be published in Hindustan daily. The order-sheet of 15. 3. 52 however shows that the court was orally given to understand by the plaintiff that the dafendants were evading service and therefore it passed an order against them for substituted service. It is obvious from the perusal of the plaintiff's application dated 15. 3. 52 and the affidavit which he had filed along with that application that it was no where stated by him in writing that the defendants were keeping out of the way for the purpose of avoiding service and under these circumstances the court was misled by some oral statement made by the plaintiff. It may be pointed out that O. 5, R. 20 C. P. C. which provides for substituted service lays down that the court may order substituted service if it is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service or for any other reason. In the order-sheet dated 15. 3. 52, the court has ordered substituted service on the mere ground that it was given to understand by the plaintiff that the defendants were keeping themselves out of way for the purpose of avoiding service. It has not given any other ground in its order for ordering substituted service. I have already pointed out above that the plaintiff had not the courage to give it in writing either in his application or in his affidavit that the defendants were evading service of processes in any manner. On the other hand, it was stated by him that he did not know their addresses. The court does not seem to have read the application and the affidavit and by the plaintiff's oral accusation, it was clearly misled in thinking that the defendants were avoiding the service of processes. It was the duty of the plaintiff to find out the addresses of the defendants and got them served with processes. It was very unfair on his part to mislead the court by saying orally that the defendants were evading service of processes. It may be further pointed out that the notices were published in the Hindi Edition of Hindustan date 28. 3. 52 and the defendants-were required to be present in the court on 2. 4. 52, i. e. only 5 days after the date of the publication of the notice. If the defendants were present either at Ranchi or Calcutta, it could not be easily possible for them to come to Churu within this short duration. Again, it may be pointed out that the addresses of the defendants mentioned in the above notice were not correct inasmuch as they were shown as residents of Rajpura instead of Churu. The notices were thus obviously defective and there was no proper substituted service on those two defendants. The trial court has commited no irregularity in deciding the point against the plaintiff. Then coming to the second point it has been urged by plaintiff learned counsel that the defendants have not come into the witness box and that they have led no evidence to show that they come to know of the decree on 17. 6. 54. It is contended by him that the affidavit filed by Banarsilal is no evidence under sec. 1 of Indian evidence Act. He has further urged that the registered cover enclosing notices to the defendants before the passing of the final decree is on record, that it shows that it was refused by the defendant and, therefore, the trial court ought to have raised a presumption that the defendants had come to know of the preliminary decree on the date of refusal, i. e. 4. 3. 52 and if the period of limitation is computed from that date, their application is time barred. Learned counsel for the defendants has urged in reply that the trial court has committed no error in relying upon the affidavit, that his clients had offered themselves to appear in the witness box but their evidence was shut out at the request of the plaintiff and he cannot now take advantage of the defendants' failure to appear in the witness box. It is further urged that the registered cover was never put to the defendants in the trial court and that there is no evidence to the effect that the postal peon had taken this envelope to the defendants. It may be observed that a similar question had arisen in the case of Shib Sahai vs. Tika (1 ). In that case, the plaintiff had filed an application for restoration of the suit on the ground that he had missed the local train in the morning and he had to travel by the next train. Thus, it was urged by him that his absence in the court was due to a pure accident. He filed an affidavit in support of his application. The trial court dismissed the application and expressed an opinion that affidavit by the plaintiff was no evidence of the facts alleged therein. On a revision application being filed it was observed by the learned Judge as follows referring to O. 19, r. 1 C. P. C.- "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 affidavit 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. R. 2 of O. 19 Civil I. C. , puis 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. " After a little further discussion the learned Judge relied on the affidavit and ordered the suit to be restored to its original number. This view was followed in the case of Kanhiya Lal S. Dadlani, Supdt. Central Excise Nagpur vs. Megkraj Ramkaranji (2 ). In that case, the learned Judges proceeded to decide the question whether an order on an application is a sine qua non before the court can act upon an affidavit. After discussing a number of cases, it was held that - "an affidavit is evidence of the facts alleged therein. When the opposite party does rot controvert the affidavit, or remains absent, it would be refining a technicality to order the applicant to file another and not to read the affidavit already filed. " It was observed that - "the order receiving the affidavit is tantamount to ordering it and complies with the law. " In the same case it was also observed that - "the distinction between substantive and interlocutory applications in defining the term "any applications'' in R. 2 is without any foundation. The rule is applicable to any application which is made to the Court, irrespective of its nature. The Code itself does not define the word "application" nor does it make any distinction between one application and another. " I respectfully agree with the view which has been taken in the above two cases. In the present case, the defendants had presented an application and according to O. 19, R. 2 C. P. C. evidence could be given by an affidavit. It further appears from the record of the trial court and also its order that the defendant was prepared to come into the witness box but his evidence was closed at the request of the plaintiff, because the defendant had not been able to attend the court earlier. It cannot, therefore, be said that the defendant was reluctant to appear as a witness and allow himself to be cross-examined by the other party. The trial court has relied upon his affidavit and I do not think that it has committed any irregularity in doing so. The defendant has given the date when he came to know of the decree and it was for the plaintiff to show in rebuttal that the defendant had come to know of the decree earlier than 17. 6. 54. It appears from the record of the trial court that plaintiff Gordhan examined himself and one Ruda. The plaintiff no doubt stated that when the mortgaged property was put to auction, Kedar Nath, Santlal and Mohanlal's sons were present, but he did not make it clear how their presence could let the defendants know that there was a decree against them and that their property was put to auction. Both the defendants have mentioned in their application that for several years, they were living outside Rajasthan, that they did not come to Churu and they had no knowledge of the suit or of the decree. Plaintiff Gordhan has not been able to show that the defendants had knowledge of the decree before 17. 6. 54 in any particular manner. His witness Ruda has also not stated if the defendants had knowledge of the decree. Under these circumstances, the trial court cannot be said to have committed any mistake in computing the period of limitation from 17. 6. 54. As regards the contention of the plaintiff's learned counsel about the presumption arising out of the registered cover, it would suffice to say that a closed registered cover is certainly on record and there is a note thereon, that it was refused but it does not seem to have been put to the defendants in the trial court. Moreover,this cover is addressed jointly to Banarsilal and Shriniwas and therefore no presumption on its basis can be drawn against any one of the defendants. In other words, it cannot be presumed whether the postal peon had taken this cover to Banarsilal or to Shriniwas. There is no note to the effect that it was refused either by Banarsilal or by Shriniwas. There is thus no force in the revision application filed by the Plaintiff and it is fit to be dismissed. As regards revision application No. 250, it is urged by petitioner's learned counsel that his clients were not at fault if they did not appear in the trial court when there was no proper service upon them and therefore, there was no justification for the trial court to saddle them with the plaintiff's costs. Learned counsel for the plaintiff-non-petitioner has urged in reply that the costs were in the discretion of the trial court and this Court should not therefore interfere in revision. I quite agree with learned counsel for the plaintiff to the extent that ordinarily this Court should not interfere with the discretion of the trial court in the matter of costs and if the trial court had come to the conclusion that the defendants were to blame in any way for their failure to attend the court, its order would have been perfectly justified in awarding costs to the plaintiff and this Court would not have interfered with that order. But when the trial court come to the conclusion that the defendants were not served before ex parte proceedings were ordered against them, then there was absolutely no justification for ordering them to pay all expenses incurred by the plaintiff in execution proceedings such as court-fees, poundage fee, stamps for sale certificate and also the costs which were to be paid to the purchaser. Its order can be justified only with regard to the amount of Rs. 40/- which was allowed to the plaintiff for adjournment of one date. Its order about the payment of Rs. 10/-for plaintiff's witnesses cannot be maintained when these witnesses were not believed by the trial court. This revision application is therefore fit to be allowed to the above extent. Application No. 252 is dismissed. Application No. 250 is partly allowed and the trial court's order is set aside except with regard to Rs. 40/ -. Both the parties are left to bear their own costs in this Court in both the applications. . ;