SHALINIBAI Vs. PRAKASH

JUDGEMENT

(1.) Rule. Heard by consent.

(2.) This civil revision application is directed against the order dated 26.6.1995 passed by the Trial Court rejecting the applicants-defendants application for setting aside the ex parte decree passed in Civil Suit No. 1804 of 1987 on 2.1.1991.

(3.) Heard learned Counsel for both the sides. Perusal of the impugned order reveals that the learned Trial Court went on the basis of the Pursis Ex. 32 in which the applicants had stated that since the applicants-defendants filed the affidavit in the above case there was no need to give evidence and hence Pursis was filed. The Trial Court has observed that though it is stated in the Pursis Ex. 32 that the affidavit was filed, he could not find any affidavit on the record. The oral evidence was not led. The Trial Court has further observed that there is no order-sheet indicating filing of the affidavit by the defendants and then concluded that there is thus no evidence from the side of the applicant to prove their version. This is the main reason on the basis of which the application for setting aside the ex parte decree has been rejected by the Trial Court. Perusal of the certified copy of the application for setting aside ex parte decree reveals that the application itself is on solemn affirmation by all the six applicants-defendants. The defendants while filing the Pursis Ex. 32 apparently has referred to this as affidavit and thought it fit not to adduce any further evidence. If the application itself was on the solemn affirmation the contents thereof ought to have been gone into by the learned Trial Court. It was a different thing whether to accept the contention as raised on the basis of the solemn affirmation, but saying there was no affidavit on the record and, therefore, there was no evidence from the side on the applicants defendants to prove their contention is another thing. The Trial Court thus has ignored the say on the affidavit of the applicants while passing the impugned order. This is clearly an irregularity which has vitiated the impugned order. It is in these circumstances, the impugned order passed by the Trial Court cannot be sustained. The said order is, therefore, hereby set aside and the applicants- defendants application Ex. 1 is remitted back to the Trial Court for deciding the same afresh in accordance with law. Since the matter is already belated the Trial Court is directed to pass the suitable order on the applicants- defendants application as expeditiously as possible and in any case within a period of one month from the receipt of this order. It and be sent back. No costs. Revision disposed of.