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The Indian Evidence Act, 1872
The Indian Penal Code
Section 3 in The Indian Evidence Act, 1872
Article 136 in The Constitution Of India 1949
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Supreme Court of India
Smt. Sudha Devi vs M.P. Narayanan & Ors on 26 April, 1988
Equivalent citations: 1988 AIR 1381, 1988 SCR (3) 756
Author: L Sharma
Bench: Sharma, L.M. (J)
           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