D.L. Mehta, J.This revision petition is directed against the order dt. 30th May 1988 passed by the learned Addl. Munsiff No. 1, Jaipur City, Jaipur, in Execution Petition No. 43/81.

2. Brief facts of the case are that the plaintiff-decree holder non-petitioner instituted a suit. In the title of the suit the name of the court has not been mentioned. However it was presented before the Additional Munsiff and Judicial Magistrate No. 2, Jaipur City, Jaipur on 23-3-81. On 25-3-81 learned District Judge, Jaipur City, Jaipur, passed the order that the case referred to in the list pending with the Additional Munsiff No. 2, Jaipur City, should be transferred to Additional Munsif and Judicial Magistrate No. 1, Jaipur City. In pursuance of the said order this case was also transferred in the Court of Additional Munsiff No. 1, Jaipur City, Jaipur. The Reader of the Court signed the summons which was to be issued on 28th April 1981 and the date was fixed on 4th May 1981. Summonses were entered in the process register at SI. No. 446 on 30-4-81. Without the order of the Court Dasti. summonses were given to the plaintiff for getting the summons served on the defendant after taking the assistance of the process server. It will not be out of place here to mention that the Process Server has reported that he proceeded with the plaintiff to get the summons served on the defendant and went to the shop of the defendant. He has further reported that the defendant refused to accept the summons as such, he pasted the same in the presence of the witnesses. It will not be out of place here to mention that the summonses are issued in Form No. 2 provided under Order 5 Rules 1 and 5. On the back of the summons there is a prescribed Form, in the same Form it is stated that how the Process Server will report. Two modes have been prescribed differently. Under one mode the Process Server has to state whether he knows the party to whom the notice is to be served or not. The second mode is that he has to report as to who has identified that person whom the notice is to be served is the same or not. On 4th May 1981 the Process Server submitted report to the Court that defendant has declined to accept the summons. Ex parte proceedings were initiated on 4th May 1981. On 18-5-81 Court directed the petitioner that he should produce the evi- dence on 21-5-81. On 21st May defendant instead of producing the evidence submitted the affidavit of Lal Bihari Singh and Bal Mukund Gupta. He has also produced some documents. The date was fixed for arguments and on 1-8-81, Court passed the ex parte decree against the present petitioner and directed that the petitioner should be ejected from the shop of which he is a tenant within a period of two months; decree for the payment of arrears of rent was also passed.

3. Mr. Lodha appearing on behalf of the petitioner submitted that the judgment and the decree passed by the Court below should be treated as non-existent/non est. He submits that any decree passed by the Court having no jurisdiction to try the case is a nullity. The second contention of Mr. Lodha is that the decree is also a nullity as there is no material on record on the basis of which the Court could have passed the decree. To elaborate this position Mr. Lodha submitted that the affidavits filed by the non-petitioner-plaintiff cannot be admitted in evidence and they cannot be read as evidence.

4. The next contention of Mr. Lodha is that in the instant case it is an admitted position that the Additional Munsiff, Jaipur City (West) had the jurisdiction to entertain the suit for hearing and to pass necessary orders.

5. Mr. Mehta appearing on behalf of the non-petitioner submitted that the plaintiff has instituted a suit for the declaration that the decree has been obtained by fraud and misrepresentation as such, it should be treated as non est. Mr. Mehta further submits that the petitioner cannot file the objections u/s 47 and the Court has rightly rejected the objections filed by the petitioner-judgment-debtor. He submits that the revision petition does not lie.

6. I have heard the rival contentions of both the parties.

7. Mr. Lodha cited before me number of cases to show that if the decree has been passed by the Court having no territorial jurisdiction then the decree is a nullity. It is not necessary to refer them at all. However, for the sake of convenience, I will refer only two cases and thereafter deal with the law.

8. Mr. Lodha has cited before me the case of Kiran Singh and Others Vs. Chaman Paswan and Others, Honble Supreme Court held that it is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity and that invalidity could be set up wherever it is sought to be enforced or relied upon even at the stage of execution. Their Lordships fur-the held that the defect of jurisdiction whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action strikes at the very authority of the Court to pass any decree and such defect cannot be cured even by consent of the parties.

9. Mr. Lodha submits that on the date of presentation of the suit the Court of Additional Munsiff No. 2, Jaipur City, had no jurisdiction to entertain the suit or to accept the suit even for the purpose of presentation. He submits that the admitted position is that the suit was presented to the Court having no jurisdiction to entertain the suit, as such the decree passed on such a suit is a nullity.

10. In the case of Seth Hiralal Patni Vs. Sri Kali Nath, Honble Supreme Court held that it is well settled that the objection as to local jurisdiction of the Court does not stand on the same footing as an objection to the competence of the Court to try acase, as it goes at the root of the jurisdiction and where it is lacking it is a case of inherent jurisdiction. On the other hand, an objection as to the local jurisdiction of the Court can be waived and this principle has been given a statutory recognition by enactment like S. 21, C.P.C.,

11. The controversy which existed prior to the amendment of 1976 has been settled to a great extent by amending Act of 1976. Section 21(1), C.P.C. provides that no objection as to place of suit shall be allowed by any appellate or revision Court unless such objection was taken in the Court of first intenerate the earliest possible opportunity and, in all cases, where the issues are settled at or before such settlement and unless there has been a consequent failure of justice. Thus, Clause (I) prohibits the taking of such objection relating to the territorial jurisdiction after the framing of the issues. Apart from that there should be failure of justice. The failure of justice may result only when there is a lack of jurisdiction and not a technical error in the matter of ascertaining the territorial jurisdiction. Suppose a suit of the value of Rs. 1 lac is decided by the Munsiff having jurisdiction of only 5,000--it may amount to a case of lack of jurisdiction. Whether Additional Munsiff No. 1 decides the case or Additional Munsiff No. 2 decides the case is immaterial and does not result in the failure of justice. It will not be out of place that Clause (3) of Section 21 further provides that no objection as to the competence of the executing Court with reference to the local limits of its local jurisdiction shall be allowed by any appellate or revisional Court unless such objection was taken in the executing Court at the earlist possible opportunity. This clause further provides that the territorial objection can be raised relating to the matter of execution before the executing Court, but the objection cannot be raised about the passing of the decree which is to be executed. Section 21A further prohibits the litigation on the ground of territorial jurisdiction. Apart from that Section 24, Clause (5) as amended vide Amending Act of 1976 provides that a suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it. Let us assume that the Additional Munsiff No. 1 had no jurisdiction even then the petitioner cannot claim any advantage of any of the provisions referred above for the simple reason that on 28th March 1981, the case was transferred by the District Judge, Jaipur City, Jaipur from the Court of Additional Munsiff No. 2 to the Court of Additional Munsiff No. 1. Additional District Judge is empowered now under the amended law to transfer even such cases which were wrongly presented to a Court having no jurisdiction to try it. Subsection (5) of S. 24 has been inserted in the year 1976. Thus, the objection regarding the territorial jurisdiction raised by Mr. Lodha is jdevoid of any force and the decree cannot be said to be a nullity on the ground that initially ithe suit was instituted in a Court having no territorial jurisdiction.

12. The next contention of Mr. Lodha is that there is no material on record on the basis of which this Court can come to the conclusion that the trial Court had exercised the jurisdiction vested in it by passing the ex parte decree. It is necessary to refer Order 18, C.P.C. relating to the hearing of the suit and examination of the witnesses. Order 18, Rule I provides that the plaintiff will have a right to begin a case unless the defendant admits the facts alleged by the plaintiff. In this case, the defendant has not appeared at all and has not filed the written statements, as such R, 1 applies and the plaintiff has a right to begin the case, may it be an ex parte proceeding. The next stage is under Rule 2 of Order 18. The party having a right to begin shall state his case and produce his evidence in respect of his issues which he is bound to prove. Thus, Rule 2 provides that even in ex parte cases the plaintiff has to produce the evidence to prove his case. There may be exception to this rule , and the exception may be carved out by the Court, by passing any order which may be considered just and proper in the circumstances of the case. In the instant case, no such order has been passed by the Court and it was obligatory on the part of the plaintiff to produce evidence in this case. Order 18, Rule 3A provides that where a party himself wishes to appear as a witness he shall so appear before any other witness on his behalf has been examined, unless the Court for the reasons to be recorded, permits him to be recorded as his own witness. Rule 5, Order 18 provides how the evidence shall be recorded. Thus, it is the mandatory provision of Order 18 that the evidence should be recorded even in ex parte case unless otherwise directed by the Court under any of the provisions of law.

13. Section 3 of the Evidence Act defines the evidence as under :--

Evidence means and includes a statement which the Court permits or requires to be made before it by witnesses in relation to the matters of fact under inquiry; such statements are called oral evidence.

(2) all documents produced for inspection of the Court; such documents are called documentary evidence.

14. So, the oral evidence can only be limited to the statements recorded before the Court or the affidavit produced before the Court under its directions. A fact is said to be proved when after considering the matter before it, namely, the evidence, may be oral or documentary, 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, act upon the supposition that it exists.

15. Order 19 Rule 1 C. P. C. provides that 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. Thus, under Order 19 Rule 1, the condition precedent is that the Court must permit the person who wants to produce affidavit of the witnesses as evidence. Court can only permit where there are sufficient grounds for its satisfaction to do so. In the ordinary course, an affidavit cannot be used as evidence to prove a particular fact. It can only be used as an admission of a party under Sections 18 to 21 of the Evidence Act can be used against the party making such admission. However, it cannot be read as evidence and affidavit cannot be treated as evidence u/s 3 of the Evidence Act unless the Court permits the production of affidavit.

16. In the case of Sudha Devi Vs. M.P. Narayanan and Others, Honble Supreme Court held that the 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 reasons the Court passes an order under O. 19 Rules 1 and 2 C. P. C. Thus, the affidavits produced before the Court below cannot be read as evidence to prove the facts.

17. There is no other material on record to substantiate the case of the plaintiff. Any decree based solely and wholly on the affidavits filed before the Court cannot be treated as a decree based on evidence and it may fall within the purview of nullity.

18. In the result, I accept this revision petition and set aside the order dated 13-5-88 passed by the Court below in execution case No. 43 of 1981 and the objections are allowed. Court shall proceed according to law in the suit.

19. No order as to costs.