- (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. The revisionist's application was pressed on the ground that the plaintiffs application No. 17-C for recall of the order of the ex pane hearing was rejected on ir relevant considerations. It was contended that supporting affidavit stood unreverted and the Court should have accepted the averments made therein. It was further sub mitted that the absence of the revisionist on the earlier dates was not a valid ground for refusing adjournment on illness ground. The learned, counsel for the revisionist ar gued that the ex pane hearing was directed to be taken up by an order dated 19-3-91 and it was not open for the revisionist to file his written statement on 3-4-91 unless the ear lier order was recalled. The ex pane judg ment was bad in law, according to the revisionist, as it was recorded without af fording an opportunity to the revisionist to prove his version of the matter. The respondent-opposite party had appeared and filed a counter-affidavit. A plea was taken by the revisionist that he had already vacated the suit premises. This plea was not accepted by the respondent who stated that although the defendant-revisionist had removed his belongings the premises were kept by him under lock and key and were not vacated. It was argued on behalf of the respondent that the revisionist was a habitual defaulter in filing his written statement and the Court had given him enough opportunity to come up with his defence but he had chosen to delay the mat ter. Only under that background the order of ex pane hearing was made and the Court had refused to recall such order on good grounds.
(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. The sequence of events indicate that the suit was of 1990 and the defendant, after his appearance, had sought for and was al lowed several adjournments to file his writ ten statement. On his failure to file the writ ten statement, in order to have the matter heard, ex pane hearing was directed. Only at that stage the defence came up with an ap plication for recalling that order. The judg ment indicates that the defendant sought adjournments on 4-1-91, 29-1-91, 25-2-91 and again on 19-3-91 he was absent. He came up with the application for recall without filing any written statement. The application for recall was moved only on 3-4-91 the affidavit supporting the applica tion was also sworn on 3-4-91.;