MAHMOOD AKHTAR Vs. SARASWATI DEVI

JUDGEMENT

(1.) S. K. Phaujdar, J. This revision ap plication under Section 25 of the Provincial Small Causes Courts Act is directed against the judgment and decree dated 27-4-91 passed by the Vllth Additional District Judge, Allahabad, in O. S. No. 37 of 1990 decreeing the suit of the plaintiff-respon dent 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 exparte.

(2.) 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 pane hearing as indicated in his order dated 19-3-91. THE date for ex pane hearing was fixed on 21-3-91. It ap pears 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 ap plication was rejected by the Court by its order dated 3-4-91 and on that very date the matter was heard ex. pane. THE judgment was, however, pronouncement on 27-4-91. To explain his absence on 19-3-91 the defen dant filed an affidavit as per paper No. 18-C before the Court below. He proposed to say that he was absent on that date due to ill ness. 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 state ment could not be signed.

(3.) 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 under Section 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, ap proached with such a prayer and the aver ments 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 ARC 1982 at page 471. It was also in respect of a proceeding under Section 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, as reported in ARC 1985 (1) at page 427, U. P. Civil and Revenue Cases Reporter 1994 (1) at page 66, in ARC 1989 (1) at page 407 and also ARC 1984 (1) at page 137 are also not to the point.