RAJESHWARI DEVI Vs. RAM CHANDRA GUPTA

JUDGEMENT

(1.) D. C. Srivastava, J. The rejoinder af fidavit was not called for nor it was presented in the Registry. It has been filed today directly in the Court.

(2.) HEARD learned counsel for the appel lant and Shri Radhey Shyam representing the respondent.

(3.) THE proposed substantial question of law numbered at serial Nos. (iii) and (iv) in the memo of appeal are common and can be decided together. In brief, the contention has been that in a regular suit where appeal lies from the judgment and decree, it was obligatory for the lower court to record evidence of the parties and affidavit could not be substantive evidence to decide the suit. In view of this, the judgment of the trial court is based on no evidence, hence the decree cannot be sustained. This contention cannot be accepted in view of Allahabad Amendment to Rule 1 of Order XIX of the Code of Civil Procedure whereby Rule 1- A was introduced providing that where the case proceeds exparte, the court may permit the evidence of the plaintiff to be given on affidavit. This amendment came into force with effect from 10th February, 1981. Since the suit proceeded ex parte in view of this Allahabad Amendment to Order 19 Rule 1 of the Code of Civil Procedure, affidavit could be accepted as evidence in a suit proceeding ex parte and it cannot be said that the suit was decreed without any evidence.