ORDER
Vasanthakumar, J
1. This Civil Revision Petition is directed against the Judgment and decree dated 12.3.1991 passed in S.C.No.76/88 by by the Court of. the Addl. Small Causes Judge, Bangalore.
2. The suit is filed by a limited Company under the name of Sree Visalam Chit Fund Ltd, incorporated under the Indian Companies Act for recovery of balance of subscription amount due by the defendants-1 to 3 under the contract documents entered into between the parties.
3. In pursuance of suit summons issued, first and third defendants after due service of suit summons have remained absent and they were placed ex parte. Second defendant after having entered appearance in the suit proceedings neither filed written statement nor participated in the proceedings and the Court placed him also exparte. Plaintiff instead of adducing oral and documentary evidence, has filed an affidavit by way of evidence in respect of the averments contained in the plaint. The Court after perusal of the affidavit and taking into consideration the materials on record dismissed the suit on the ground that the suit having not been properly instituted by a duly authorised agent of the Company and further did not place any reliance on the affidavit filed by a person who has not been duly authorised by plaintiff Company. As against the dismissal of the suit, the plaintiff Company has filed this Revision Petition.
4. The important question that arises for consideration is whether the procedure adopted by the Court in receiving affidavit by way of substantial evidence in respect of the causes in the suit for purposes of either non suiting the claim or for decreeing the same without oral or documentary evidence on behalf of the plaintiff and without affording opportunity to the defendants to participate in the proceedings and depriving them the right of cross examination inspite of their being placed ex parte in justifiable?
5. In the instant case, the question that arises for consideration is whether the practice of accepting affidavits by way of substantive piece of evidence for the causes espoused in contingencies/eventualities when defendants/opponents having not filed their written statements and placed ex parte is legally permissible to pronounce Judgments on the affidavits by themselves and whether acceptance of such affidavits would sub-serve the ends of substantial justice? It has become a regular feature by the Courts of Small Causes in cases where defendants are placed exparte to order the plaintiffs to the causes to prove their case by filing affidavits. To summarise the eventuality, when affidavits are treated as part of evidence one has to look into various provisions envisaged under C.P.Code where affidavits play their role to prove the points at issue, Order 11 envisages filing of affidavit/s regarding documents. Order 12 envisages filing of affidavit of signatures. Order 19 envisages of proving of the facts by affidavit. Order 48 Rule 3 of CPC., deals with the use of Forms in the Appendices, Form No. 11 in Appendix-B relates to the affidavit of Process Server to accompany the return of summons/or notice as envisaged under Order 5 Rule 18 of CPC. Form Nos. 4 and 5 Appendix C relates to affidavits as to documents covered under Order 11 of CPC. Order 19 deals with affidavits relating to proof of particular facts. The effect of pronouncing judgment on the strength of affidavits regarding substantive causes espoused by the party without affording an opportunity to the contesting party to cross-examine is to be stated is not a procedure which would subserve the ends of Justice since C.P.C. is designed to facilitate Justice and further it is not a penal enactment for punishment and penalties.
6. In SANGRAM SINGH v. ELECTION TRIBUNAL, KOTAH, , it is observed as follows:-
“Now a Code of procedure must be regarded as such. It is ‘procedure’, something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to ‘both’ sides) lest the very means designed for the furtherance of justice be used to frustrate it.”
The Supreme Court further observed at para-17. It reads:-
“Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decision should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.”
7. In B.N.MUNIBASAPPA v. G.D.SWAMIGAL, 1959 Mys. LJ. 71 @ 77 it is observed at page 77 while dealing with the scope, of Order 19 Rule 1 :-
“The view taken by their Lordships in the High Court of Nagpur in KANHAIYALAL v. MEGHRAJ (ILR 1954 Nag. 603) was based on that taken by Ghulam Hasan J., in Shib Sahai v. Tika (18 Luck. 104). That learned Judge, in the course of his Judgment, while referring to the provisions of Rule 1 of Order 19 of the Code of Civil Procedure observed as follows:-
“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 Order 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 defendant’s 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 plaintiff’s 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 plaintiff’s 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 Order 19 Rules 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 Order 19, Rules 1 and 2 he would not have expressed the opinion which he did, that the affidavit was no evidence of the facts alleged therein.”
The Supreme Court in Sangram Singh v. Election Tribunal, Kotah, has observed at Paras 17 to 35. They read as follows:-
“17. Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible in the light of that principle.
18. The existence of such a principle has been doubted, and in any event was condemned as unworkable and impractical by O’Sullivan J. in ‘Hariram Rewachand v. Pribhadas’, AIR 1945 Sind. 98 at Page 102(D) He regarded it as an indeterminate term “liable to cause misconception” and his views were shared by Wanchoo, C.J. and Batna, J. in Rajasthan:-“Sewa Ram v. Misrimal”, (E). But that a law of natural justice exists in the sense that party must be heard in a Court of law, or at any rate be afforded an opportunity to appear & defend himself, unless there is express provision to the contrary, is, we think, beyond dispute. See the observations of the Privy Council in – ‘Balakrishna Udayar v. Vasudeva Ayyar’, AIR 1917 PC 71 at page 74(F), and especially in – T.B. Berrett v. African Products Ltd.,’, AIR 1928 PC 261 at page 262(G), where Lord Buck-master said-
“no forms or procedure should ever be permitted to exclude the presentation of litigant’s defence”.
Also – ‘Hari Vishnu’s case (A)’, which we have just quoted.
In our opinion, Wallace J., was right in – Venkatasubbaiah v. Lakshminarasimhan’ AIR 1925 Mad 1274 (H), in holding that -“One cardinal principle to be observed in trials by a Court obviously is that a party has a right to appear and plead his cause on all occasions when that cause comes on for hearing”,
and that-
“It follows that a party should not be deprived of that right and in fact the Court has no option to refuse that right, ‘unless the Code of Civil Procedure deprives him of it”.
19. Let us now examine that Code, and first, we will turn to the body of the Code. Section 27 provides that
“Where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim.”
Section 30 gives the Court power to
“(b) issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid.”
Then come the penalities for default. They are set out in Section 32 but they are confined to cases in which a summons has been issued under Section 30. There is no penalty for a refusal or an omission to appear in response to a summons under Section 27 –
It is true certain consequences will follow if a defendant does not appear, and popularly speaking, those consequences may be regarded as the penalty for non-appearance, but they are not penalties in the true sense of the term. They are not punishments which the Court is authorised to administer for disregard of its orders.
The antithesis that Section 32 draws between Section 27 and Section 30 is that an omission to appear in response to a summons under Section 27 carries no penalty in the strict sense, while disregard of a summons under Section 30 may entail punishment. The spirit of this distinction must be carried over to the First Schedule. We deprecate the tendency of some Judges to think in terms of punishments and penalties properly so called when they should instead be thinking of compensation and the avoidance of injustice to both sides.
20. We turn next to the Rules in the First Schedule. It is relevant to note that the Rules draw a distinction between the first hearing and subsequent hearing, and that the first hearing can be either (a) for settlement of issues only, or (b) for final disposal of the suit.
21. First, there is Order 5 Rule 1 :-
“……..a summons may be issued to the defendant to appear and answer the claim ‘on a day to be therein specified’.”
This summons must state whether the hearing is to be for settlement of issues only or for final hearing (Rule 5). If it is for final hearing, then (Rule 8)
“it shall also direct the defendant to produce, ‘on the day fixed for his appearance’, all witnesses upon whose evidence he intends to rely in support of his case,”
Then comes Order 8, Rule 1 which expressly speaks of “the first hearing”. Order 9 follows and is headed “Appea’rance of parties and consequence of non-appearance.”
22. Now the word “consequence” as opposed to the word “penalty” used in Section 32 is significant. It emphasises the antithesis to which we have already drawn attention. So also in Rule 12 marginal note is “consequence of non-attendance” and the body of the rule, states that the party who does not appear and cannot show sufficient cause “shall be subject to alt the provisions of the foregoing rules applicable to plaintiffs and defendants, respectively, who do not appear.”
The use of the word “penalty” is scrupulously avoided.
23. Our attention was drawn to Rule 6(2) and it was argued that Order 9 does contemplate the imposition of penalties. But we do not read this portion of the rule in that light. All that the plaintiff has to do here is to pay the costs occasioned by the postponement which in practice usually means the cost of a fresh summons and the diet money and so forth for such of the witnesses as are present; and these costs the plaintiff must pay irrespective of the result.
24. Rule 1 of Order 9 starts by saying – “On the day fixed in the summons’ for the defendant to appear and answer…………”.
and the rest of the rules in that Order are consequential on that. This is emphasised by the use of the word “postponement” in Rule 6(1)(c), of “adjournment” in Rule 7 and of “adjournment” in Rule 1. Therefore, we reach the position that Order 9 Rule 6(1)(a), which is the rule relied on, is confined to the first hearing of the suit and does not ‘per se’ apply to subsequent hearings? see-‘Zeinulabdin Khan v. Ahmed Raza Khan’, 5 Ind App 233 at Page 236(PC)(l).
25. Now to analyse Rule 6 and examine its bearing on the first hearing. When the plaintiff appears and the defendant does not appear when the suit is called on for hearing, if it is proved that the summons was duly served-
(a)…….the Court may proceed ‘ex parte'”.
The whole question is, what do these words mean? Judicial opinion is sharply divided about this. On the one side is the view propounded by Wallace, J. in ‘AIR 1925 Mad 1274 (H)’, that ‘ex-parte’ merely means in the absence of the other party, and on the other side is the view of O’Sulivan J., in AIR 1945 Sind 98 at p.102(D)’, that it means that the Court is at liberty to proceed without the defendant till the termination of the proceedings unless the defendant shows good cause for his non appearance. The remaining decisions, and there are many of them take one or the other of those two views.
26. In our opinion, Wallace, J., and the other Judges who adopt the same line of thought, are right. As we have already observed, our laws of procedure are based on the principle that, as far as possible, no proceeding in a Court of law should be conducted to the detriment of a person in his absence. There are of course exceptions, and this is one of them. When the defendant has been served and has been afforded an opportunity of appearing, then, if he does not appear, the Court may proceed in his absence. But, be it noted, the Court is not directed to make an ‘ex parte’ order.
Of course the fact that it is proceedings ‘ex parte’ will be recorded in the minutes of its proceedings but that is merely a statement of the fact and is not an order made against the defendant in the sense of an ‘ex parte’ decree or other ‘ex parte’ order which the Court is authorised to make. All that Rule 6(1)(a) does is to remove a bar and no more. It merely authorises the Court to do that which it could not have done without this authority, namely to proceed in the absence of one of the parties. The contrast in language between Rule 7 and Rule 13 emphasises this.
27. Now, as we have seen, the first hearing is either for the settlement of issues or for final hearing. If it is only for the settlement of issues, then the Court cannot pass an ‘ex parte’ decree on that date because of the proviso to Order 15 Rule 3(1) which provides that that can only be done when.
“the parties or their pleaders are present and none of them objects”.
On the other hand, if it is for final hearing, an ‘ex parte’ decree can be passed, and if it is passed, then Order 9, Rule 13 comes into play and before the decree is set aside the Court is required to ‘make an order to set it aside’. Contrast this with Rule 7 which does not require the setting aside of what is commonly, though erroneously, known as “the ‘ex parte’ order”. No order is contemplated by the Code and therefore no order to set aside the order is contemplated either. But a decree is a command or order of the Court and so can only be set aside by another order made and recorded with due formality.
28. Then comes Rule 7 which provides that if at ‘an adjourned hearing’ the defendant appears and shows good cause for his “previous non appearance”, he can be heard in answer to the suit.
“as if he had appeared on the day fixed for his appearance.”
This cannot be read to mean, as it has been by some learned Judges, that he cannot be allowed to appear at all if he does not show good cause. All it means is that he cannot be relegated to the position he would have occupied if he had appeared.
29. We turn next to the ‘adjourned’ hearing. That is dealt with in Order 17 Rule 1(1) empowers the Court to adjourn the hearing and whenever it does so it must fix a day “for the further hearing of the suit”, except that once the hearing of the evidence has begun it must go on from day to day till all the witnesses in attendance have been examined unless the Court considers, for reasons to be recorded in writing, that a further adjournment is necessary. Then follows Rule 2:-
“Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 9 or make such other order as it thinks fit.”
30. Now, Rule 2 only applies when one or both of the parties do not appear ‘on the day fixed for the adjourned hearing’. In that event, the Court is thrown back to Order 9 with the additional power to make “such order as it thinks fit”. When it goes back to Order 9 it finds that it is again empowered to proceed ‘ex parte’ on the adjourned hearing in the same way as it did, or could have done, if one or other of the parties had not appeared at the first hearing, that is to say, the right to proceed ‘ex parte’ is a right which accrues from day to day because at each adjourned hearing the Court is thrown back to Order 9 Rule 6.
It is not a mortgaging of the future but only applies to the particular hearing at which a party was afforded the chance to appear and did not avail himself of it. Therefore, if a party does appear on “the day to which the hearing of the suit is adjourned”, he cannot be stopped from participating in the proceedings simply because he did not appear on the first or some other hearing.
31. But though he has the right to appear at an adjourned hearing, he has no right to set back the hands of the clock. Order 9 Rule 7 makes that clear. Therefore, unless he can show good cause, he must accept all that has gone before and be content to proceed from the stage at which he comes in. But what exactly does that import? To determine that it will be necessary to hark back to the first hearing.
32. We have already seen that when a summons is issued to the defendant it must state whether the hearing is for the settlement of issues only or for the final disposal of the suit (Order 5 Rule 5). In either event, Order 8 Rule 1 comes into play and if the defendant does not present a written statement of his defence, the Court can insist that he shall; and if, on being required to do so, he fails to comply – “the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit”. (Order 8 Rule 10).
This invests the Court with the widest possible discretion and enables it to see that justice is done to ‘both’ sides; and also to witnesses if they are present; a matter on which we shall dwell later.
33. We have seen that if the defendant does not appear at the first hearing, the Court can proceed ‘ex parte’ which means that it can proceed without a written statement; and Order 9 Rule 7 makes it clear that unless good cause is shown the defendant cannot be relegated to the position that he would have occupied if he had appeared. That means that he cannot put in a written statement unless he is allowed to do so, and if the case is one in which the Court considers a written statement should have been put in, the consequences entailed by Order 8 Rule 10 must be suffered.
What those consequences should be in a given case is for the Court, in the exercise of its judicial discretion, to determine. ‘No hard and fast rule can be laid down. In some cases an order awarding costs to the plaintiff would meet the ends of justice; an adjournment can be granted or a written statement can be considered on the spot and issues framed. In other cases, the ends of justice may call for more drastic action.
34. Now when we speak of the ends of justice, we mean justice not only to the defendant and to the other side but also to witnesses and other who may be inconvenienced. It is an unfortunate fact that the convenience of the witness is ordinarily lost sight of in this class of case and yet he is the one that deserves the greatest consideration. As a rule, he is not particularly interested in the dispute but he is vitally interested in his own affairs which he is compelled to abandon because a Court orders him to come to the assistance of one or other of the parties to a dispute. His own business has to suffer. He may have to leave his family and his affairs for days on end. He is usually out of pocket. Often he is a poor man living in an out of the way village and may have to trudge many weary miles on his feet.
And when he gets there, there are no arrangements for him. He is not given accommodation; and when he reaches the Court, in most places there is no room in which he can wait. He has to loiter about in the verandahs or under the trees, shivering in the cold of winter and exposed to the heat of summer, wet and miserable in the rains; and then, after wasting hours and sometimes days for his turn, he is brusquely told that he must go back and come again another day. Justice strongly demands that this unfortunate section of the general public compelled to discharge public duties, usually at loss and inconvenience to themselves, should not be ignored in the over all picture of what will best serve the ends of justice and it may well be a sound exercise of discretion in a given case to refuse an adjournment and permit the plaintiff to examine the witnesses present and not allow the defendant to cross-examine them, still less to adduce his own evidence. It all depends on the particular case.
But broadly speaking, after all the various factors have been taken into consideration and carefully weighed, the endeavour should be to avoid snap decisions and to afford litigants a real opportunity of fighting out their cases fairly and squarely. Costs will be adequate compensation in many cases and in others the Court has almost unlimited discretion about the terms it can impose provided always the discretion is judicially exercised and is not arbitrary.
35. In the Code of 1859 there was a provision (Section 119) which said that –
“No appeal shall lie from a judgment passed ‘ex parte’ against a defendant who has not appeared.”
The Privy Council held in Section Ind. App. 233 (PC)(1) that this only applied to a defendant who had not appeared at all at any stage, therefore, if once an appearance was entered, the right of appeal was not taken away. One of the grounds of their decision was that –
“The general rule is that an appeal lies to the High Court from a decision of a civil or subordinate Judge, and a defendant ought not to be deprived of the right of appeal, except by express words or necessary implication.”
The general rule, founded on principles of natural justice, that proceedings in a Court of justice should not be conducted behind the back of a party in the absence of an express provision to that effect is no less compelling. But that apart. It would be anomalous to hold that the efficacy of the so-called ‘ex parte’ orders expends itself in the first Court and that thereafter a defendant can be allowed to appear in the appellate Court and can be heard and can be permitted to urge in that Court the very matters he is shut out from urging in the trial Court; and in the event that the appellate Court considers a remand necessary he can be permitted to do the very things he was precluded from doing in the first instance without getting the ‘ex parte’ order set aside under Order 9, Rule 7.”
8. The sum and substance of the legal principles that are evolved, point out that ordinarily evidence has to be recorded viva voce as provided by Rule 4 of Order 18 CPC., procedure may be dispensed with if parties agree that affidavits should be substituted by evidence to be so recorded. In cases where there is no such agreement and the allegation contained in the affidavit produced by one party is not controverted by other it would be open to the Courts to base its decision upon the uncontroverted affidavits i.e., the procedure to be followed under Order 19, Rule 1 and 2 CPC., it would not be correct to say that affidavits cannot be regarded as evidence even though it is properly produced under Order 19, Rules 1 & 2 CPC., but it is clear that the affidavits can never take place of the evidence recorded in the ordinary way. Affidavits are no evidence unless the parties consent or the Court makes an order under the Rule 2 of Order 19 CPC and that such an order could be implied when the affidavit is received. Affidavit does not generally speaking become the evidence in suit except with the consent of the parties or where an order under Rule 2 of Order 19 made by the Court or it is authorised by some statutory provisions which receives in express terms the evidence by affidavits. So, I am of the view that taking into consideration the language employed by Order 19 Rules 1 and 2, it is to be stated that the affidavits contemplated under Rules 1 and 2 of Order 19 would not decide the substantive rights of the parties. So, it is not a healthy practice for the Courts to adopt this procedure by receiving the affidavits by way of evidence to prove the substantive causes irrespective of the status. This practice of the Court adopting the procedure of directing the parties to the cause to file affidavits by way of proof of their substantive rights is to be deprecated since a right that is given to the contesting party to appear subsequent to his being placed ex parte in the proceedings pending before the Court would invariably lead to an inference that he has right to cross-examine the witnesses if any. This opportunity that is given to the contesting party to appear at a subsequent stage of the proceedings pending before the Courts and to participate in the proceedings would clearly indicate that the Courts must not adopt the procedure of accepting the affidavits by way of evidence to prove the substantive causes even though the defendants are placed ex parte, the Courts must direct the party to the causes to lead evidence in support of their rights. This procedure has to be adopted with a view to subserve the ends of Justice, since by pronouncing judgments on the affidavits filed by the parties would be depriving a substantive right that is given to a contesting party to appear and to participate in the legal proceedings subsequent to his being placed ex parte. It is made clear that the Courts are with a view to promote Justice must not adopt the procedure of directing the parties to file affidavits by way of evidence which it is to be stated is as against the legal principles.
9. In the instant case, the plaintiff has filed the affidavit by way of evidence and has not examined any witness in support of his case. The defendant has not filed written statement. The Court has accepted the affidavit by way of proof and while pronouncing the judgment, the Court has discussed the merits and demerits of the case and dismissed the suit. It is to be stated that when the plaintiff filed an affidavit and that too when the contents of the affidavits were uncontroverted he was made to believe that the suit would be decreed. But to his surprise, the Court has dismissed the suit without affording him a reasonable opportunity of explaining the causes on which the Court founded as being the causes for dismissal.
10. Language of the Rules 1 and 2 of Order 19 CPC shows that adjudication of rights of parties in a civil suit cannot be generally based on affidavit evidence. All that the rule permits is that any particular fact or facts may be proved by affidavit or that affidavit of any witnesses may be read at the hearing and that too on such conditions as the Court thinks reasonable and after the Court has permitted the same by an order passed for sufficient reasons. The Rule appears to refer to evidence of formal character may be when it is difficult or highly inconvenient to insist upon the personal attendance of a witness. Even so before affidavit evidence can be taken at the hearing of a suit the Court must record an order to that effect and it can be done only in case there is sufficient reasons for doing so. Under Section 3 of the Indian Evidence Act, evidence means and includes:-
1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry such statements are called oral evidence. 2) all documents produced for the inspection of the Court, such documents are called documentary evidence. A fact is said to be proved when after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of the particular case to act upon the supposition that it exists.
A fact is said to be disproved when after considering the matters before it, the Court either believes that it does not exist or considers its non-existence so probable that a prudent man ought under the circumstances of the particular case to act upon the supposition that it does not exist, A fact is said not to be proved when it is neither proved or disproved.
11. In SUHADEVI v. M.P.NARAYAN, AlR 1988 SC 1381 the Supreme Court at Para-4 has observed:-
“Besides Affidavits are not included in the definition of evidence in Section 3 of the Evidence Act and can be used as evidence only if for sufficient reason Court passes an order under Order XIX Rule 1 and 2 of Code of Civil Procedure.”
12. The learned Counsel for the respondents argues that judgment is delivered in the instant case is by the Court of the Small Causes and as such acceptance of the affidavit filed by the party as either being a fact proved or disproved would substantially come within the purview of Order 20 Rule 4 of C.P.C. and as such the impugned judgment does not suffer from any legal infirmities. What Rule 4 of Order 20 C.P.C. envisages is that judgment must be intelligible and Small Causes Court should ordinarily support its decisions by reasons since the judgment is revisable and comes under Revisional powers of the High Court.
13. In STATE OF KARNATAKA v. M/s. HEMARAJ ACHALCHAND AND CO., 1985 (1) KLJ 373 this Court has observed at paras-2, 3 and. 4 thus:-
“The suit stood posted to 17.1.1974 for the appearance of the defendant and settlement of issues, Appellant-defendant was served with the summonses in the suit on 3.4.1974. On 17.1.1974 defendant failed to appear and the suit was decreed. The note in the order sheet reads:-
“Defendant absent, placed exparte. Suit decreed as prayed for.”.
2. This appeal requires to be allowed on a short-point. Order Vl.ll Rule 5(1) C.P.C., provides that any allegation of fact in the plaint, if not denied specifically, or by necessary implication or atleast stated to be not admitted in the pleading of the defendant, shall be taken to be admitted. This provision deals with a case where a written statement is filed but does not “Traverse” an allegation of fact either expressly or by necessary implication or does not even stated that the allegation is not admitted. Rule 5(2), which deals with a situation where no written statement is at all filed, provides that it shall be lawful for the Court to pronounce judgment on the basis of facts contained in the plaint. However, in both cases, where an allegation of fact is taken to be admitted by non-traverse or where, in the absence of the filing of a pleading by the defendant, Court can act upon the allegations 01 fact contained in the plaint, the Court has the discretion to call for proof of the allegations independently of the admission by non-denial. Rule 10 of Order 8 provides that where any party from whom a written statement is required under Rule 1 or Rule 9 of Order VIII CPC fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him.
The expression “judgment” in Rule 5(2) and Rule 10 of Order 8 has the same connotation as it has in its definition in Section 2(9) CPC. A “judgment” means “the statement given by the Judge of the grounds of a decree or order”. The power of the Court to require any fact, which must otherwise be taken to have been admitted by non-traverse, to be proved otherwise than by such deemed admission, itself implies and carries with it the need for an application of the mind to all circumstances relevant to the issue including the one referred to in Sub-rule (3). Such application of the mind must be manifest from the record of the proceedings. It may, indeed, happen in a conceivable case that if all the facts contained in the plaint are taken to be admitted, even then, the plaintiff may not be entitled, in law, to the relief he claims. The Court must apply its mind and make it manifest that it has done so.
The Court need not write an elaborate judgment. There can, in the very nature of things, be no hard and fast rule, valid for all occasions, prescribing what a document, to be eligible to be called a ‘judgment’ in cases where defendant does not file a pleading and where the Court proceeds to pronounce a ‘judgment’ on the basis of facts contained in the plaint must contain. It must necessarily depend on the facts and circumstances of each case. However, there are certain minimal essentials innerent in the idea of a “judgment” as defined in Section 2(9) CPC. This must at least, it must disclose that the judge has applied his mind to the nature of the suit claim and to the aspect whether, if the facts contained in the plaint are taken to be admitted, the suit-claim is entitled to succeed. This is apart from cases where, in the circumstances, a Judge feels the need to call for proof of facts independently of the admission by non-traverse.”
14. The other interesting question that arises for consideration in this Revision Petition is whether it was open for the Court of the Small Causes after acceptance of affidavit filed by the plaintiff to have dismissed the same without affording opportunity for the plaintiff to substantiate the causes which were instrumental in warranting dismissal since the plaintiff was made to believe by acceptance of the affidavit that the suit would be decreed since facts sworn to in the affidavit stood uncontroverted by the contesting party to the cause? Question to be posed is whether procedure adopted by the Court of the Small Causes in dismissing the suit without giving opportunity to substantiate the facts which warranted, the Court to dismiss the suit after accepting the affidavit evidence has resulted in substantial injustice. No doubt the Court has powers to dismiss the suit on the ground of jurisdiction and limitation, but as far as facts which are required to be proved, the Court was not justified in dismissing the suit for the reasons other than jurisdiction which of course inherent jurisdiction, pecuniary jurisdiction and territorial jurisdiction and limitation. In the light of the observations of the Supreme Court in Sangram Singh’s Case, referred above, it is not proper for the Courts to pronounce exparte judgments resulting in dismissal of the suit or in decreeing the same after receiving the affidavit without providing opportunity to substantiate the causes which warranted dismissal or decreeing of the suit.
15. The cumulative effect being that the Courts whether it be Small Cause Court or other Courts should not adopt the procedure of receiving the affidavits by way of evidence to prove the substantive rights as pleaded.
16. It is to be noted that the plaintiff would be deprived to substantiate his causes if the Court dismisses the suit by accepting the affidavit and without affording an opportunity to the plaintiff to substantiate such causes which warranted dismissal. Similarly, if the Court proceeds to pass a decree after receiving affidavit by way of evidence, the contesting defendant would be deprived to participate in the proceeding and would be having no opportunity to cross-examine the plaintiff pr the plaintiff’s witnesses irrespective of the fact that no written statement being on record and contesting party having been placed exparte.
17. Endeavour, as the Supreme Court has observed, is to avoid snap decisions and to afford litigants a real opportunity of fighting out their cases fairly and squarely. The plaintiff in the instant case was misled since by filing an affidavit he thought evidence was sufficient proof of the facts entitling plaintiff to succeed, Plaintiff would have adduced evidence in proof of such facts which disentitled him to succeed according to the Court, if opportunity had been given to him before dismissal of suit
18. Only in exceptional cases Court is empowered to exercise powers under Order 19 Rules 1 and 2 of C.P.C. to call upon the parties to file affidavit by way of evidence to prove particular fact or facts and not in respect of the substantial causes.
19. The Courts must adopt normal procedure of giving opportunity to the plaintiff to adduce oral and documentary evidence instead of either directing or receiving the affidavits for purposes of pronouncing judgments. Equally it is open for the defendants who have been placed ex parte to participate in the proceeding from the stage they were placed ex parte and avail of the opportunity of effectively cross-examining the plaintiff and his witnesses; since right to cross-examine is one of the fundamental indices of the administration of Justice.
20. I am of the view that the procedure adopted by the Court, in the instant case, cannot be legally accepted. The Judgment and decree passed by the Court of Addl. Small Causes Judge, Bangalore City, in S.C.No.76/88 is hereby set-aside and the matter is remitted back. The Small Causes Court is hereby directed to re-open the case. The plaintiff is directed to take out suit summons to the defendant Further, the Small Causes Court is directed to give opportunity to the plaintiff to establish the causes pleaded. Hence, this C.R.P. is allowed.
This is to place on record Court’s appreciation of the assistance rendered by Sri S.P.Shankar, Senior Counsel, as Amicus Curiae.