BHAIRON LAL Vs. CHANDMAL

JUDGEMENT

(1.) THIS is a defendant-tenants revision petition under Section 115 of the Civil Procedure Code against the order dated 11. 05. 1993 passed by Addl. District & Sessions Judge, Nimbaheda in Civil Misc. Appeal No. 24/92, confirming the order dated 6th Jan. 1988 passed by Munsif & Judicial Magistrate, Nimbaheda in Civil Original Suit No. 158/81.

(2.) IN the suit which was filed for eviction and the recovery of the arrears of rent way back in the year 1981, an order was passed on Jan. 3, 1984 with regard to the determination of the rent under Section 13 (3) of the Rajasthan Premises (Control of Rent & Eviction) Act. An application was moved by the landlord-plaintiff under sec. 13 (5) of the Act on 27. 05. 1987 and this application filed by the plaintiff-landlord under Sec. 13 (5) was decided by the Munsif & Judicial Magistrate, Nimbahera striking off the defence of the defendant-tenant on the ground of three defaults as under : - (i) late payment of the rent determined under Sec. 13 (3) days for the rent which was deposited on 23. 2. 84 instead of 20. 2. 84; (ii) rent for the period 9. 4. 86 to 8. 05. 1986 was deposited by a delay of 5 days; (iii) the rent for the period 9. 1. 84 to 8. 03. 1984 had not been paid at all.

(3.) MR. Dinesh Maheshwari on the other hand has contended before me that the contentions raised by MR. Bhandari before this court were never raised either before the trial court or before the appellate court and therefore such contentions should not be entertained in these proceedings under Sec. 115 of the Code of Civil Procedure. MR. Maheshwari has also distinguished Sudhadevi's case (supra)on the basis that it was a case in which the affidavit was sought to be filed before the Supreme Court to fill up the lacunae in the oral evidence and it was in this context that the Supreme Court observed in para No. 4 of the decision in Sudha Devi Vs. M. P. Narayan that the plaintiff cannot be allowed to fill up the lacunae in the evidence belatedly at the Supreme Court stage and that the affidavits are not included in the definition of evidence under Sec. 3 of the Evidence Act and the same can be used as evidence only for sufficient reasons if the court passes an order under Or. 19 rule 1 & 2 CPC. Thus, the observations made by the Supreme Court in Sudha Vs. M. P. Narayan (supra) have to be considered and applied in the context in which the same were made, and it may also be pointed out that the Supreme Court decision is in a matter in which the decree had been passed and at Supreme Court stage by way of filing an affidavit the oral evidence was sought to be supplemented. I have gone through the aforesaid authority and find myself in agreement with Shri Maheshwari because the Supreme Court had declined to consider the affidavit which had been filed after the passing of the decree to fill up the lacunae in oral evidence at a belated stage before the Supreme Court and it was in the context of the facts of that case as above that the Supreme Court did not allow the affidavit to be considered as a part of the evidence. There may not be any quarrel with the legal proposition that affidavits are not included in the definition of evidence under Sec. 3 of the Evidence Act and they cannot be read in evidence in absence of an order under Order 19 rule 1 & 2 CPC. Order 19 rule 1 & 2 CPC are reproduced as under: - R. l : Power to order any point to be proved by affidavit. Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable; Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross- examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit. R. 2 : Power to order attendance of deponent for cross-examination. (1) Upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent. (2) Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court, or the Court otherwise directs.