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PETITIONER: SMT. SUDHA DEVI

       Vs.

RESPONDENT: M.P. NARAYANAN & ORS.

DATE OF JUDGMENT26/04/1988

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) SEN, A.P. (J)

CITATION:  1988 AIR 1381            1988 SCR  (3) 756  1988 SCC  (3) 366        JT 1988 (2)   217  1988 SCALE  (1)952

ACT:      Code of Civil Procedure, 1908: Order IX, Rule 13-Decree exparte-Setting aside  of-Held, even in absence of a defence Court not  entitled  to  pass  an  ex-parte  decree  without reliable relevant evidence.      Indian Evidence  Act, 1872: Section 3-Affidavits can be used as  ’evidence’ only  when ordered  by court under Order XIX, Rules 1 or 2 C.P.C.      Constitution of  India, Article  136: Plaintiff in suit cannot be  allowed to  fill up  lacuna in evidence at S.L.P. stage.

HEADNOTE:      The plaintiff-appellant  filed a  suit for ejectment of the tenant  defendant No.  1 for  default in payment of rent and also  to have  wrongfully sublet  the flat to the second defendant. None  of the defendants appeared. At the ex-parte trial  the  plaintiff  examined  one  witness  and  tendered certain documents  in evidence. The Single Judge decreed the suit. Subsequently  to the  decree the  two  defendants  are alleged to have inducted the third defendant (respondent No. 1) to  occupy the  demised  flat.  The  plaintiff  filed  an application for  modification of  the decree. The respondent No. 1  first filed  an application for setting aside the ex- parte decree,  but later withdrew it and assailed the decree in appeal.  The Letters  Patent Bench allowed the appeal and set aside the decree on the ground that the plaintiff’s sole witness did  not disclose his concern with the suit property or his relationship with the plaintiff and that on the basis of the  meagre evidence  led  by  her,  she  had  failed  to establish her case.      In the  appeal to this Court it was contended on behalf of the  appellant that  the witness  was the  husband of the plaintiff-appellant and  thus he  was fully  conversant with the relevant  facts and that the criticism by the High Court was not justified. Reliance was placed on an affidavit filed in this  Court. It  was further contended that even ignoring the relationship  of the  witness with  the  plaintiff,  his evidence was  adequate to  prove the  plaintiff’s case which has not  been rebutted  by any  of the  defendants either by filing  a  written  statement  or  by  cross  examining  the

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witness. 757      Allowing  the   appeals  and  remanding  the  suit  for retrial. ^      HELD: 1.  The plaintiff  cannot be  allowed a decree on the evidence led by her in the suit founded on the plaint as it is. Even in absence of a defence the Court cannot pass an ex-parte decree without reliable relevant evidence. The fact that the  plaintiff chose  to examine  some evidence  in the case cannot  by itself  entitle her to a decree. The Letters Patent Bench  was, therefore,  justified in scrutinising the evidence from that angle. [760B-D]      2. The suit was filed and the relief was claimed on the basis that  the third  defendant was inducted in the flat in question by the other two defendants after they had suffered a decree.  There is  not an  iota of  evidence  led  by  the plaintiff to  prove this  story.  On  the  other  hand,  the evidence of the sole witness, who positively stated that the defendant No.  3 was  in possession  of the flat in question from before  the date  of the  decree passed  in the earlier suit, disproves  this part of the case. If the defendant No. 3 is  assumed to  be in  possession from  before the earlier decree several other issues would arise for consideration on which  the  plaintiff  will  be  required  to  lead  further evidence necessitating retrial. [760D-E]      3. Affidavits  are not  included in  the definition  of ’evidence’ in  s. 3  of the  Evidence Act and can be used as evidence only  if for  sufficient reasons  Court  passes  an order under  Order XIX,  Rules 1  or 2  of the Code of Civil Procedure. The plaintiff-appellant cannot be allowed to fill up the lacuna in the evidence belatedly at the Supreme Court stage. [759E-F]      4. In  view of  the prayer made by the plaintiff in the High Court  and in  C.A. No.  4145 of 1986 before this Court for remanding  the suit  for retrial  and the  concession of defendant No. 3 before this Court, the judgments of the High Court are  set aside  and the suit is remanded to the Single Judge for  retrial  and  disposal  in  accordance  with  law expeditiously. [761B]

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4145-46 of 1986.      From the  Judgment and order dated 10.7.85 and 11.11.85 of the High Court of Calcutta in Appeal No. 477 of 1984.      Tapas Ray and B.R. Agarwal for the Appellant. 758      V.A. Bobde,  Rajiv Dutta  and Ms.  Mridula Ray  for the Respondents.      The Judgment of the Court was delivered:      SHARMA, J.  By the impugned judgment the Division Bench of the  Calcutta High  Court set  aside the  ex-parte decree passed by  the Original  Side of  the Court in favour of the plaintiff Sudha  Devi, the  present appellant.  The  dispute between the  parties is in regard to a flat in a building on Lord Sinha Road, Calcutta. The plaintiff prayed for a decree for Rs.1,44,730  as past  mesne profits besides future mesne profits at the rate of Rs.170 per day and for "if necessary, decree as against the third respondent for possession of the flat" described  in the  plaint. By  way of  an  alternative relief to the money claimed, an inquiry for determination of the mesne  profits was  asked for.  None of  the  defendants

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appeared. At  the ex-parte  trial the plaintiff examined one witness and  tendered certain  documents  in  evidence.  The learned Single  Judge decreed the suit and the defendant No. 3 (present respondent No. 1) filed an appeal therefrom which was allowed  on 10-7-1985  by the  judgment which  is  under challenge in  Civil Appeal  No. 4146  of 1986. The plaintiff thereafter filed  an application with a prayer to modify the judgment and  remand the  suit for  retrial. The  prayer was rejected by  the order  dated 11-10-1985.  Civil Appeal  No. 4145 of 1986 is directed against this order.      2. According to the plaintiff’s case, the defendant No. 1 Baranagar  Jute Factory  Company Ltd.  was the  tenant  in respect to  the flat  in question  under the  plaintiff. The Jute  Company   defaulted  in   payment  of  rent  and  also wrongfully sublet  the flat  to the  second defendant Sadhan Chattopadhyaya, which  led to the filing of an eviction suit by the  plaintiff. Both the defendants were impleaded in the suit but  they did not appear to contest. An ex-parte decree of eviction  was passed  on 19-2-1982. It is further pleaded that subsequent  to the decree, either of the two defendants or both  wrongfully inducted  the third  defendant to occupy the demised  flat. The plaintiff was, therefore, entitled to the reliefs mentioned in the plaint.      3. The  third defendant  filed an application under the provisions of  Order IX,  Rule  13  of  the  Code  of  Civil Procedure for  setting aside  the ex-parte decree, but later withdrew the  same and  assailed the  decree  in  appeal  on merits. The  Letters Patent Bench allowed the appeal and set aside the  decree on  the ground  that the plaintiff, on the basis of the meagre evidence led by her, failed to establish her case. 759      4. The  fact that  the plaintiff  obtained an  ex-parte decree in the earlier suit against the defendant No. 1 and 2 is established  by the  copy of  the decree exhibited in the case. The  allegation in  the plaint  so far  as  the  third defendant is  concerned, is  in paragraph 7 in the following words:           "7. Subsequent  to the  said Decree  on a  date or           dates which  the plaintiff  is unable  to  specify           until after  disclosure  by  the  defendants,  the           first   and/or    second   defendants   wrongfully           permitted  and  allowed  the  third  defendant  to           occupy the  said demised  flat. The  first  and/or           second defendants  by  themselves  and/or  by  the           third defendant  are still  in wrongful possession           of the said demised flat." The only evidence relevant to this part of the case is to be found in  the oral  evidence of the plaintiff’s sole witness Nand Kumar Tibrewal. The High Court (in appeal) has declined to rely  on his  evidence mainly  on  the  ground  that  the witness has not disclosed his concern with the suit property or his relationship with the plaintiff. He has been rejected as  incompetent.  The  learned  Counsel  for  the  appellant contended that the witness (now deceased) was the husband of the plaintiff-appellant  and thus  he was  fully  conversant with the  relevant facts.  The criticism  by the  High Court that the  witness did  not state  anything in  his  evidence which could  connect him  with the plaintiff or the property and thus  make him  competent was attempted to be met before us by  relying on  an affidavit  filed in this Court. We are afraid, the  plaintiff cannot  be allowed  to  fill  up  the lacuna in the evidence belatedly at the Supreme Court stage. Besides, affidavits  are not  included in  the definition of ’evidence’ in  s. 3  of the  Evidence Act and can be used as

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evidence only if for sufficient reason court passes an order under Order  XIX,  Rules  1  or  2  of  the  Code  of  Civil Procedure. This  part of the argument of Mr. Tapas Ray must, therefore, be rejected.      5. The  learned counsel  next urged  that even ignoring the relationship  of the  witness with  the  plaintiff,  his evidence is adequate to prove the plaintiff’s case which has not been  rebutted by any of the defendants either by filing a written  statement or  cross-examining  the  witness.  Mr. Bobde, the  learned counsel representing the defendant No. 3 (respondent No.  1 before  us), contended  that the  witness contradicted the  case pleaded  in the  plaint by positively stating that  the defendant  No. 3  was in possession of the flat in  question from  before the date of the decree passed in the  earlier suit. The plaintiff’s assertion in paragraph 7 of the plaint is thus contradicted and the suit 760 cannot  be   decreed  on  its  basis.  The  learned  counsel proceeded to  analyse  the  situation  arising  out  of  the records of  the case  to show that if the defendant No. 3 is held to  be in  possession since  before the earlier decree, other issues would arise in the suit, on which the plaintiff will be  required to  lead  further  evidence.  The  learned counsel  strenuously   argued  that   in   the   facts   and circumstances of  the case, the prayer of the plaintiff made after the  disposal of  the appeal before the Letters Patent Bench for  remanding the  suit to  the learned  Single Judge (Original Side)  for retrial  was fit to be allowed and that Civil Appeal  No. 4145  of 1986  should be  allowed by  this Court.      6. On  the failure  of the  defendants to appear in the suit, the  learned trial  Judge decided  to proceed with the case ex-parte. Even in absence of a defence the court cannot pass an  ex-parte decree without reliable relevant evidence. The fact  that the  plaintiff chose to examine some evidence in the  case cannot  by itself  entitle her to a decree. The High Court  (in appeal)  was, therefore, perfectly justified in scrutinising  the evidence  from this angle. The suit was filed and the relief was claimed on the basis that the third defendant was  inducted in the flat in question by the other two defendants after they had already suffered a decree, and there is  not an  iota of  evidence led  by the plaintiff to prove this  story. On  the other  hand, the  evidence of the sole witness  disproves this part of the case. Having regard to the  allegations in  the plaint,  the facts emerging from the documents  and the  oral  evidence,  it  is  clear  that several other  questions may  arise for consideration if the defendant No.  3 is  assumed to be in possession from before the earlier decree. We, therefore, agree with Mr. Bobde that the plaintiff cannot be allowed a decree on the evidence led by her in the suit founded on the plaint as it is.      7. After hearing the learned counsel for the parties at considerable length,  we also  agree with  Mr. Bobde that in the interest  of justice  the prayer  made on  behalf of the plaintiff before  the High  Court after  the disposal of the appeal for  remand and  retrial of  the suit  is fit  to  be allowed. As  nobody is disputing this position before us, we do not  consider it  necessary to  further  deal  with  this aspect. In  view of  the prayer made by the plaintiff in the High Court  and in Civil Appeal No. 4145 of 1986 before this Court and  the concession  of the defendant no. 3 before us, we hold  that the  suit should  be sent  back to the learned Single  Judge   for  retrial.  The  plaintiff  may  file  an application for  amendment of  her pleading,  if so advised, and in  that case  the learned Single Judge shall dispose it

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of in accordance with law. The defendants will thereafter be allowed to file their written statements within a 761 period  to   be  indicated  by  the  Court.  The  suit  will thereafter be taken up for further trial as expeditiously as may be  possible. The  evidence already led by the plaintiff shall continue to be evidence in the suit.      8. In the result, the judgments of the High Court dated 10-7-1985 and  11-10-1985, passed  in Appeal No. 477 of 1984 are set aside and the suit is remanded to the learned Single Judge for  disposal in  the light  of the  observations made above. We  feel that  the suit  ought to  be disposed  of as expeditiously as  possible and  we expect  and hope that the trial Judge will be able to dispose it of within six months. The appeals  before us  are allowed  in the above terms. The parties shall bear their own costs in this Court; but so for the costs  in the  High Court are concerned they shall abide the final result in the litigation. P.S.S.                                 Appeals allowed. 762