Ramchandra Karkare vs Bhudermal

P.R. Sharma, J.—This revision application arises out of a suit for arrears of rent and electric charges filed by the landlord against his tenant.

The Defendant had admittedly taken a portion of the Plaintiff''s house on rent of Rs. 25/-per month, the said amount being agreed to be inclusive of electric and water charges. Another tenant of the Plaintiff who used to reside In the upper storey of the same house also used to pay Rs. 25/-per month as rent inclusive of water and electric charges. On the 1st of March, 1958 the tenant who occupied the upper storey of the house left: with the result that the Defendant was the only person who utilized the electric connection in the said house. The Plaintiff''s contention is that in the month of March, 1958 the Defendant agreed in the presence of Dr. Sapre to pay electric charges independently of the agreed rent of Rs. 25/-in case the said charges'' exceeded Rs. 4/-P. M. In his notice dated the 10th of October, 1959 the Plaintiff referred to this agreement between himself and the Defendant and claimed house-rent at the rate of Rs. 21/- P. M. and electric charges in addition to this sum. The Defendant in his reply dated the 26th of October, 1959 denied any such agreement. In the written - statement also the Defendant denied the agreement to pay electric charges in excess of Rs. 4/-per month.

On the evidence of the parties being recorded the case was argued on 7-12-1960. At that time a receipt Ex. D-2 for rent passed in favour of the Defendant, which was produced in evidence by the Defendant himself, was referred to by the counsel for the Plaintiff in order to show that on the reverse of it an endorsement had been made by the Plaintiff to the effect that electric charges shall be extra. The Defendant''s counsel declared that this endorsement was not there on the receipt at the time of its production in Court on 21-1-1960 by the Defendant. The Court did not pass and order allowing the fact of such interpolation to be proved by an affidavit. All that was observed in the proceedings of the Court dated 7-12-1960 was that the Defendant was prepared to swear to this fact on an affidavit. The Defendant filed on 7-12-1960 an affidavit stating that the endorsement on the reverse of the receipt (Ex. D-2) was not there at the time when it was produced in Court. Curiously enough the Court passed an order on 9-1-1961 directing the Defendant to file an affidavit and in its proceedings dated 12-1-1961 observed that the Defendant had filed an affidavit in compliance with the orders contained in the proceedings of 9th of January, 1961. The only affidavit which is to be found on the record of this case was filed on 7-12-1961 and it is obvious that that affidavit could not have been filed by the Defendant in pursuance of the order passed by the Court on 9-1-1961. It must, therefore, be held that the affidavit dated the 7th of December, 1960 was filed without any order from the Court permitting the Defendant to prove the fact of the endorsement on the reverse of Ex-D-2 being an interpolation by an affidavit.

Section 1 of the Evidence Act excludes application of the Act to affidavits presented to any Court or Officer. What ''evidence'' is meant to include is to be found in the definition of that term laid down in S. 3 of the Evidence Act. An affidavit does not come within the purview of that definition. The provisions contained in S. 30(c) and Order XIX Rule 1 of the CPC lay down an exception to the general rule that an affidavit shall not be evidence of the facts stated therein. Both of these provisions require an order of the Court permitting a party to prove any particular fact or facts by an affidavit. Unless such an order is passed the general rule will apply and the facts stated in an affidavit cannot be treated as evidence in the case. This question came up for consideration in Gopikabai v. Narayan (AIR 1953 Nag. 135) before the Nagpur High Court and it was held that an affidavit cannot be treated as evidence, unless it is permitted by an order of the Court passed under Order XIX C.P.C.

In the present case the fact of the endorsement on the reverse of Ex. D/2 was a matter of vital importance to the case. Such a fact could not have been permitted, and in fact was not permitted, by the Court to be proved by an affidavit, The affidavit dated 7-12-1960 must, therefore, be altogether excluded from consideration. The only action which the Court could have taken on that affidavit was to allow the Defendant to be further examined and cross-examined by the adverse party, but unless this was done the endorsement on Ex. D/2 had to be taken at its face value.

The learned trial Judge committed another illegality in the course of the trial of this case. The sentence in the 3rd line of Bhudermal''s deposition that "

" has obviously been left incomplete. This fact was pointedly brought to the notice of the Court by the Defendant in his application dated 2-3-1960. The learned Judge who decided this case seems to have done no better, inasmuch as he mis-read Dr. Sapre''s statement to mean that the Defendant had agreed to pay Rs. 21/- as house-rent and Rs. 4/- P. M. only towards electric charges. Even a cursory reading of Dr. Sapre''s statement would show that the learned Judge has mis-read his evidence.

I would therefore, set aside the judgment and decree passed by the trial Court and direct that this case be-retried. The Defendant shall be re-called for being examined on the facts alleged by him in his affidavit dated 7-12-1960 and in his application dated 2-3-1960. The Plaintiff shall be free to adduce such evidence in cebuttal of the evidence adduced on remand as he thinks fit. The parties shall be given only one date on which the Defendant may make a further statement, examine such evidence in support of his plea regarding the endorsement on the reverse of Ex. D/2. The Plaintiff also shall lead all the evidence on that date. In no case shall a further adjournment be permitted. The parties shall pay process-fee for the witnesses to be examined on the point aforesaid within one week from to-day. They shall bear their own costs till this stage.