NAMDEO LAXMAN NAWALE Vs. CHANDRASEN KHASIRAM RAJESHIRKE

JUDGEMENT

(1.) HEARD Mr. Ketkar, the learned Advocate for petitioner. None appears for the respondents, though served. The point for consideration which arises in the present petition is, whether the Court can rely upon the affidavit of the plaintiff for decreeing the suit without there being sufficient reason for permitting the party to lead evidence in the form of affidavit instead oral evidence ?

(2.) THE facts in brief relevant for decisions are that, the respondent No. 1 filed his suit for eviction of the petitioner from the suit premises on various grounds including the ground of sub-letting as well as need of the premises for personal occupation of the respondent. The plaint in that regard was lodged in the trial Court on 2nd March, 1984 and on service of summons, the parties appeared before the trial Court on 11th February, 1985 on which date the petitioner filed an application seeking time to file written statement. Similar requests were made by the petitioner on 3rd April, 1985 and 18th April, 1985 and on both the occasions time was granted to file the written statement. Again on 26th April, 1985, the petitioner filed an application seeking further time to file written statement, which was registered by the trial Court.

(3.) THEREAFTER on 29th July, 1985, the petitioner filed an application seeking leave to file written statement which was allowed by the trial Court on 17th August, 1985, subject to payment of costs of Rs. 100/- to the respondent No. 1 on or before 23rd August, 1985. The petitioner however, failed to pay the cost as ordered by the trial Court. Nevertheless, the matter was taken up by the trial Court on 26th August, 1985, 8th September, 1985, 21st September, 1985 and on 2nd November, 1985 on which date the trial Court, the petitioner having not paid the costs till then and there being no written statement filed on record, allowed the respondent No. 1 to prove his claim by affidavit. The respondent No. 1 filed his affidavit on the very day and the trial Court after considering the plaint and the affidavit dismissed the suit on 1st January, 1986 for want of sufficient material in support of the claim of the respondent No. 1. On appeal to the lower Appellate Court, the same was allowed by judgment dated 6th February 1988 on the ground that the affidavit filed by the respondent No. 1 was not challenged and there was no evidence on record contrary to the contents of the said affidavit.