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
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
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
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
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
