Holding

An ex‑parte decree cannot be granted without reliable, relevant evidence, and affidavits cannot be used to supplement evidence unless ordered, thus the suit must be remanded for retrial.

Summary

Sudha Devi sued the tenant (defendant 1) for non‑payment of rent and wrongful sub‑letting, and also sought possession against a third defendant who allegedly occupied the flat after a decree. The defendants did not appear, and an ex‑parte decree was passed based on the plaintiff’s sole witness. The third defendant appealed; the Calcutta High Court set aside the decree, finding the plaintiff’s evidence insufficient and the witness incompetent. On further appeal, the Supreme Court held that a court cannot pass an ex‑parte decree without reliable, relevant evidence, that affidavits are not evidence unless ordered under CPC Order XIX, and that the plaintiff could not fill the evidential gap at the Supreme Court stage. Consequently, the Supreme Court set aside the High Court judgments and remanded the suit for retrial before the Single Judge, allowing the plaintiff to amend her pleadings if necessary.

Issues considered

Whether an ex‑parte decree may be passed in the absence of a defence when the plaintiff’s evidence is unreliable or insufficient.
Whether an affidavit can be used to fill a lacuna in evidence at the appellate stage without a court order under CPC Order XIX.
Whether the relationship of a witness to the plaintiff affects his competence to testify.
Whether the plaintiff is entitled to a decree based solely on the evidence she led.
Whether the suit should be remanded for retrial.

Legislation cited

Code of Civil Procedure, 1908s. Order IX Rule 13, s. Order XIX Rules 1,2
Constitution of Indias. Article 136
Indian Evidence Act, 1872s. Section 3

Subjects

ex‑parte decreeevidenceaffidavitCivil Procedure CodeIndian Evidence Actlandlord‑tenantevictionretrialwitness competence

Judgment

A SMT. SUDHA DEVI
v.
M.P. NARAYANAN & ORS.

APRIL 26, 1988

B [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
c '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.
D
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~ .....
E 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~
F 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
G
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
H 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..
A

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 B
Letters Patent Bench was, therefore, justified in scrutinising the
·evidence from that angle. [760B-DJ

- ~>. 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 F
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

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. 477of1984.

Tapas Ray and B.R. Agarwal for the Appellant. H
758 SUPREME COURT REPORTS I1988] 3 S.C.R. J...-::-'

V.A. Bobde, Rajiv Dutta and Ms. Mridula Ray for the
A
Respondents.

The Judgment of the Court was delivered:

SHARMA, J. By the impugned judgment the Division Bench of
B the Calcutta High Court set aside the excparte 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. l,44.,730 as past mesne profits besides future mesne . \
profits at the rate of Rs.170 per day and for "if necessary, decree as
C 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 respon-
D dent No. 1) filed an appeal therefrom which was allowed on 10-7-1985
hy the judgment which is under challenge in Civil Appeal No. 4146 of
I986. 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 -I ~
is directed against this order. \
E
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 evic-
F lion 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, there-
fore, entitled to the reliefs mentioned in the plaint.
G
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 th.e plaintiff, on the
H basis of the meagre evidence led by her, failed to establish her case.
SUDHA DEVI v. M.P. NARAYANAN ISHARMA, J.J 759

4. The fact that the plaintiff obtained.an ex-parte decree in the
A
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 B
the plaintiff is unable to specify until after disclosure by the

- -l. 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 wrong-
'
~· ful possession of the said demised flat."
c
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 D
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 E
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 defini-
tion 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 F
the argument of Mr. Tapas Ray must, therefore, be rejected.

5. The learned counsel next urged that even ignoring the rela-
tionship 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 G
witness. Mr. Bobde, the learned counsel representing the defendant
No. 3 (respondent No. 1 before us), contended that the witness con-
tradicted 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 asser-
tion in paragraph 7 of ·the plaint is thus contradicted and the suit H
760 SUPREME COURT REPORTS 11988] 3 S.C.R. ..i...-· .
A 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
13 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. 4145of1986 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
c 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 scrutinis-
ing the evidence from this. angle. The suit was filed and the relief was
D 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 dis-
proves this part of the case. Having regard to the allegations in the
plaint, the facts emerging from the documents and the oral evidence, it
E 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.
-
F 7. After hearing thf' learned counsel for the parties at consider-
able 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
G 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
H will thereafter be allowed to file their written statements within a
SUDHA DEVI v. M.P. NARAYANAN [SHARMA, J.J 761

period to be indicated by the Court. The suit will thereafter be taken A
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
B
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. c
P.S.S. Appeals allowed.