JAI BHAGWAN Vs. IST ADDL. DISTRICT JUDGE GHAZIABAD

JUDGEMENT

(1.) Aggrived by ex-parte decree granted by Judge, Small Causes Court in a suit for ejectment as petitioner had committed default in payment of rent, the petitioner has come to this court. It has been found by both the courts below that petitioner adopted dilatory tactics and deliberately absented on the dates fixed. In recording this finding the Courts below do not appear to have committed any error of law on fact.

(2.) It has been vehemently argued that even while passing an ex-parte decree the Judge, Small Causes Court was required to give reasons and the mere recital in the order that the suit was decreed ex-parte was contrary to order 20 Rule 4 of the Civil Procedure Code. Reliance has been placed on Krishna Fine Art Pictures Vs. R.C. Sharma 1979 A.W.C. 365 . To the principle laid down in the decision there can be no dispute but it does not apply to the facts of the case as in support of opposite parties' case an affidavit was filed by her husband. In that affidavit, copy of which has been filed along with counter affidavit, it was stated that rate of rent was Rs. 225/- that petitioner had committed default and that notice had been served on him. In support of service of notice it was mentioned that postal receipt alongwith acknowledgement is being filed. This affidavit was believed by the trial court. It was held that the case of the opposite party was proved and in absence of any counter affidavit or any other material the case of the opposite party was to be accepted. In doing so the trial Court did not commit any error. The affidavit of opposite party's husband is clear and established her case.

(3.) The learned counsel then urged that the decree for mesne profits (Rs. 360.00 was bad as even accepting the finding of revising authority and the trial Court that rate of rent was Rs. 225/- the mesne profits should have been decreed at the same rate. According to the learned counsel in such cases the fixation of mesne profits is governed by agreed rent. Although the learned counsel for opposite party is justified in submitting that there is no bar on the court in granting higher mesne profits but in case like this where ex-parte decree was passed, there should have been material to establish that the opposite party was likely to suffer mesne profits to the extent of Rs. 360.00. In the affidavit on which reliance has been placed no material has been mentioned in support of it. Mere bald statement that the landlady was likely to suffer damages of Rs. 360.00 was not sufficient. The courts below, therefore, were not justified in-granting enhanced mesne profits.