LexSMT. SUDHA DEVI versus M.P. NARAYANAN & ORS.
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A B c D E F G H SMT. SUDHA DEVI v. M.P. NARAYANAN & ORS. APRIL 26, 1988 [A.P. SEN AND LAUT MOHAN SHARMA, JJ.] Code of Civil Procedure, 1908: Order IX, Rule 13-Decree ex- parte-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: SectiiJn 3-Affidavits can be used as 'evidence' only when ordered by court under Order XIX, Rules I or 2 ·~- C ~ C . Constitution of India, Article 136: Plaintiff in suit cannot be allowed to fill up lacuna in evidence at S.L.P. stage. The plaintiff-appellant filed a suit for ejectment of the tenant- defendant No. 1 for default in payment of rent and also to have wrong- - fully sublet the flat to the second defendant. None of the defendants appeared. At the ex-parte trial the plaintiff examined one witness and iendered certain documents in evidence. The Single Judge decreed th~ ..... suit. Subsequently to the decree the two defendants are alleged to have inducted the third defendant (respondent No. I) to occupy the demised flat. The plantiff 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 hy 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 hy the llligh 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 ade- quate to prove the plaintiff's case which has not been rebutted by any of the defendants either hy filing a written statement or by cross examin- ing the witness. 756 SUDHA DEVI v. M.P. NARAYANAN 757 Allowing the appeals and remanding the suit for retrial.. HELD: 1. The plaintiff cannot be allowed a decree on the evi- dence 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-DJ A B - >. ~ 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 C 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 O which the plaintiff will be required to lead further evidence necessitat- ing retrial. [760D-EI ._ "-,~ 3. Affidavits are not included in the definition of 'evidence' ins. 3 ' of the Evidence Act and can be used as evidence only if for sufficient reasons Court passes an order under Order XIX, Rules. l or 2 of the E 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-FI 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. [761BI F CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. G ~: 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. 477of1
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