Smt. Sudha
Devi Vs. M.P. Narayanan & Ors [1988] INSC119 (26 April 1988)
Sharma,
L.M. (J) 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.
HEAD NOTE:
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]
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.
Back