- (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. At the out-set the respondent's counsel informed that the sale-deed has been executed and registered on the motion of the court, namely, the execution court on 25th July, 1997. Learned counsel for the appellant states that he has no knowledge about it. The certified photostat copy of the letter issued by the Vth Additional Chief Metropolitan Magistrate, Kanpur to the Sub- Registrar, Kanpur has been shown by the learned counsel for the respondent, from which it appears that the sale-deed was sent by the court concerned for registra tion by the Sub-Registrar. The statement of Shri Radhey Shyam in these circumstances has to be believed. Since the sale-deed has been executed for all practical purposes, this second appeal has become in fructuous. Learned counsel for the appellant has challenged the judgment of the two courts below on various grounds. A suit for specific performance of agreement to sell was filed by the respondent, which was decreed by the trial court exparte. The ap pellant filed written statement before the trial court, but did not appear thereafter to contest the suit. The suit was decided on affidavits and ex pane decree was passed. An appeal was preferred by the appellant which was dismissed. Now in this second appeal five substantial questions of law have been formulated. Learned counsel for the parties have been heard at length on these ques tions of law.
(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. In the same connection it was con tended that the affidavit is not in accord ance with law, hence it is no evidence in the eyes of law. This plea has not been formu lated as one of the questions in the memo of appeal, hence technically this point cannot be permitted to be argued. Moreover the photo state copy of the affidavit has been perused and on such hyper technical con tention, the said affidavit cannot be ex cluded. Thus the so-called substantial ques tions of law formulated at serial Nos. (iii) and (iv) in the memo of appeal do not arise.;