BASHIR AHMAD Vs. ZAINABUN NISAN

JUDGEMENT

(1.) THE first appeal has been filed by defendant-Bashir Ahmad and arises from the order dated 5-8-1971 passed by Sri O. S. N. Tripathi, Additional Civfl Judge, Meerut under the following circum stances.

(2.) THE plaintiff-respondents, who are the landlords of certain premises which are in occupation of the appellant as a tenant, filed a suit for the appellant's ejectment in the court of Munsif, Meerut on the basis of a permission and also on the ground that the defendant was in arrears alleging that the defendant's tenancy had been terminated by a notice served upon him tinder Section 106 of the Transfer of Property Act. The suit was contested on diverse grounds which need not be stated here. The de fendant was absent in spite of service of summons and the suit was decreed ex parte. The defendant filed an appeal against the ex parte decree. The appeal was allow ed, the ex parte decree was set aside and the suit was remanded by the lower appellate court for retrial. On the date fixed by the trial court for rehearing both the parties were present The plaintiffs made a statement before the trial court to the effect that they will not adduce any farther evidence. Before passing of the ex parte decree the plaintiff had examined himself and also produced three documents copy of the notice claimed to have been served upon the defendant under Section 106 of the Transfer of Pro perty Act, postal receipt and postal ac knowledgment relating to the nonce. The defendant examined one witness. It may be mentioned here that in the written state ment the defendant had contested not only service of notice upon him but also the fact that any notice as required by Section 106 of the Transfer of Property Act had been given to him. The suit was decided by the trial Court on the basis of the oral and documentary evidence which was adduced before passing of the ex parte decree. Again the defendant appealed. The appeal was al lowed, the lower appellate court taking the view that the ex parte decree having been set aside the evidence produced behind the back of the defendant before the passing of the ex parte decree could not be read against the defendant and the plaintiffs should have adduced fresh evidence in the presence of the defendant. On this view relying upon a Cal cutta case: Phani Bhushan Mukherjee v. Phani Bhushan Mukherjee, AIR 1957 Cal 170 the appeal was allowed and the case was remanded for decision of the suit afresh ac cording to law.

(3.) LEARNED counsel for the appellant urged that the lower appellate court erred in passing the order of remand when the plain tiffs had made a statement in the trial court to the effect that they did not want to ad duce any further evidence. It is urged that in the circumstances the lower appellate court should have decided the case on the basis of evidence on record i.e., on merits instead of providing fresh opportunity to the plaintiffs to adduce evidence at the trial. On hearing learned counsel for the parties I am of the opinion that this submission is well-founded. Similar matter came up before a Division Bench of this Court in the case of Lakshmi Devi v. Roongta and Co. 1962 All LJ 305 = (AIR 1962 All 381). In that case an ex parte decree was earlier passed against the appellants which was set aside and on 4-7-1951, the date fixed for hearing again the appellants were absent. On that date the counsel for the plaintiff- respondents made a statement of the effect that he relied upon the evidence already recorded before passing of the ex parte decree and did not wish to produce any further evidence. Relying on that evidence the learned Judge decreed the suit against the appellants on merits. It was this decree that was challenged in first appeal before this Court It was held mat the earlier ex parte decree against the appel lants having been set aside they became en titled to be relegated to the stage at which they were absent and could insist that every thing which had been done in then- absence should be done again in their presence in the reason foe absence having been found to be sufficient they could say that the wit nesses should be examined again and that no decree could be passed against them on the basis of the evidence recorded in their absence. I am in respectful agreement with the view taken in this case, ft is clear that even if the statement which was made on behalf of the plaintiffs before the trial Court to the effect that the plaintiffs did not want to produce any further evidence were taken to imply that they wanted to rely upon the evidence which was produced behind the defendant's back before passing of the ex parte decree that statement cannot be taken advantage of by the plaintiffs because in any case the oral evidence adduced before passing of the ex parte decree had been pro duced hi the absence of the defendant and the documents also had been exhibited be hind the defendant's back. After the ex parte decree was set aside by the appellate Court these documents win be deemed to have been de- exhibited. They should, there fore, have been exhibited again in the pre tence of the parties and the evidence of the witnesses examined behind the back of the defendant and hi bis absence also could not be read in spite of the plaintiff's statement expressing an intention to rely upon that evidence. That being the position of law, the lower appellate Court should have de cided the appeal on merits instead of pass ing an order of remand, it being well settled by authority that a remand order cannot be passed to provide a fresh opportunity of producing evidence to a party or to provide opportunity to a party to fill up lacuna or lacunae in his evidence.