Mahmood Akhtar vs Smt. Saraswati Devi and Another

S.K. Phaujdar, J.—This revision application u/s 25 of the Provincial Small Causes Courts Act is directed against the judgment and decree dated 27.4.91 passed by the VIIth Additional District Judge, Allahabad, in O. S. No. 37 of 1990 decreeing the suit of the Plaintiff-Respondent and directing eviction of the revisionist from the suit premises and for realisation of rupees thirteen thousand and odd from the revisionist. The matter was heard and decreed ex parte.

The concerned suit was filed by Smt. Saraswati Devi against the revisionist and was taken up by the court in its Small Cause jurisdiction. It appears that the Defendant-revisionist failed to file his written statement and the court directed the matter to be taken up for ex parte hearing as indicated in his order dated 19.3.91. The date for ex parte hearing was fixed on 21.3.91. It appears further that the matter could not be taken up as scheduled and an application was filed by the Defendant-revisionist for setting aside the order of 19.3.91 and for taking up the matter on contest. This application was rejected by the court by its order dated 3.4.91 and on that very date, the matter was heard ex parte. The judgment was, however, pronounced on 27.4.91. To explain his absence on 19.3.91, the Defendant filed an affidavit as per paper No. 18C before the court below. He proposed to say that he was absent on that date due to illness. The court refused to act upon this affidavit as no written statement was filed even on that date and the court was of the view that when an affidavit could be sworn, there was no reason why the written statement could not be signed.

The revisionist''s application was pressed on the ground that the Defendant''s application No. 17-C for recall of the order for ex parte hearing was rejected on irrelevant considerations. It was contended that the supporting affidavit stood unrebutted and the court should have accepted the averments made therein. It was further submitted that the absence of the revisionist on the earlier dates was not a valid ground for refusing adjournment on illness ground. The learned counsel for the revisionist argued that the ex parte hearing was directed to be taken up by an order dated 19.3.91 and it was not open for the revisionist to file his written statement on 3.4.91 unless the earlier order was recalled. The ex parte judgment was bad in law, according to the revisionist, as it was recorded without affording an opportunity to the revisionist to prove his version of the matter.

The Respondent-opposite party had appeared and filed a counter-affidavit. A plea was taken by the revisionist that he had already vacated the suit premises. This plea was not accepted by the Respondent who stated that although the Defendant-revisionist had removed his belongings, the premises were kept by him under lock and key and were not vacated. It was argued on behalf of the Respondent that the revisionist was a habitual defaulter in filing his written statement and the court had given him enough opportunity to come up with his defence but he had chosen to delay the matter. Only under that background, the order of ex-parte hearing was made and the court had refused to recall such order on good grounds.

As indicated above, the learned counsel for the revisionist stressed that the affidavit of the revisionist which stood uncontroverted should have been accepted. In support of this, the learned counsel for the revisionist relied on a decision as reported in ARC 1983 at page 663. There had been a proceeding u/s 21 of the U.P. Act XIII of 1972 before the prescribed authority. No prayer was made before the authority to cross-examine any witness. The appellate authority was, however, approached with such a prayer and the averments were supported by an affidavit. The prayer was rejected by the appellate authority and this order was confirmed in revision. This case law does not touch the controversy raised before this Court if the Court is bound to accept an uncontroverted affidavit filed by one party. The revisionist relied on another decision of the Allahabad High Court reported in 1932 ARC 471. It was also in respect of a proceeding u/s 21(1) and here also a prayer was made to summon a witness who had filed his affidavit. It was held that the order refusing to permit cross-examination could not be interfered by the High Court merely on the ground that the order lacked reasons for refusal. This also does not touch the present controversy. The other case laws relied upon by the Respondent, in 1985 (1) ARC 427, U.P. Civil and Revenue Cases Reporter 1994 (1) 66 1989 (1) ARC 407 and also 1984 (1) ARC 137 are also not to the point.

The sequence of events indicate that the suit was of 1990 and the Defendant, after his appearance had sought for and was allowed several adjournments to file his written statement. On his failure to file the written statement, in order to have the matter heard, ex parte, hearing was directed. Only at that stage the defence came up with an application for recalling that order. The judgment indicates that the Defendant sought adjournments on 4.1.91, 29.1.91. 25.2.91 and again on 19.3.91, he was absent. He came up with the application for recall without filing any written statement. The application for recall was moved only on 3.4.91 the affidavit supporting the application was also sworn on 3.4.91.

The suit in question was of small causes nature and was taken up by the court of the Additional Judge exercising the small cause power. Such suits are taken up not for settlement of issues but for disposal and the dates fixed after appearance of the Defendants are to be taken as dates of hearing. Order XVII, Rule 2, CPC Indicates the procedure to be adopted by the court when a party failed to appear on any date to which the hearing of the suit is adjourned. The court has been empowered in such a case to dispose of the suit is one of the modes directed in that behalf by Order IX of the CPC Rule 3 under Order XVII requires that when any party to a suit, to whom time had been granted to perform any act necessary to the further progress of the suit for which time had been allowed, failed to perform that act, the court could, if the parties were not present before him to proceed under Rule 2, i.e., to proceed in terms of Order IX.

Order IX, Rule 6, CPC indicates that when the Plaintiff appeared but the Defendant does not appear, the court may record an order that the suit may proceed ex parte. This order to proceed ex parte may be recalled under Rule 7 of the Order IX, provided the Defendant appears at or before such hearing and assigns good cause for his previous non-appearance. In the case at our hands, the Defendant did not appear and did not file written statement on 19.3.91 and the court directed that the matter would be taken up ex parte on 21.3.91. On that . date no application was filed by the Defendant neither on 19.3.91 nor on 21.3.91, any plea of illness was brought before the court. Initially the matter was fixed for the written statement and the Defendant could have filed his written statement even on the date when he had chosen to file the application for recall supported by an affidavit. The sequence of events indicate that the court had taken recourse to Order XVII, Rule 3 (b), CPC for failure on the part of the Defendant to file written statement. The argument of the revisionist may not, therefore, be accepted that he could have prayed for recall of the order without filing written statement.

On the question of unrecorded affidavit, the facts again may be looked into normally unrecorded evidence is taken into account by the court. But that does not suggest that the court is forbidden from looking to the intrinsic merits of the evidence adduced either orally or through affidavit. The affidavit that was filed was sworn between 10 to 11 a.m. and it was the contention of the learned counsel for the Defendant before the court below that the affidavit was signed in the house of the Defendant. This procedure is not thought of under the rules. The person swearing the affidavit is supposed to appear before the Oath Commissioner or atleast there must be something on record to indicate that the Oath Commissioner had gone to the house of the person swearing the affidavit. The court below doubted the veracity of the affidavit and had also opined and the affidavit could be signed in the house of the Defendant. There was no reason why the Defendant should not have filed the written statement. I find sufficient force in this reasoning of the court below.

Small cause matters are supposed to be taken up expeditiously and, the very purpose of a summary procedure would be frustrated if persistent adjournments are allowed to be taken by one party or the other. Moreover, when a matter is fixed for ex parte hearing for the reasons that the Defendant had failed to perform an act necessary for the progress of the suit, the court could recall such order when that Act was shown to has been performed but the recall was not thought of only for the purpose of giving further adjournment.

Looking from the above viewpoint, I find that the order of the court below does not call for any interference. The revision application, accordingly, stands rejected.