- (1.) THIS is an application in revision by defendant Batjdin against a judgment and decree of the learned Judge of the court of Small Causes, Jodhpur, dated 28. 8. 52, in a suit for money.
(2.) THE material facts are these. Plaintiff Sukhdeo filed a suit for a sum of Rs. 333. 1. 6 against the defendant for price of some work done for the defendant. THE defendant filed his written statement on the 15th April, 1952, and thereafter there was some talk between the parties for referring the dispute to arbitration, but these negotiations failed. On, 15th July, 1952, the preceedings were resumed, and the parties were called upon to produce their evidence on 28th August, 1952. Learned counsel for the defendant was not present in court on that day for some reason into which it is not necessary to enter. THEreupon the court proceeded to pass a decree against the defendant as prayed for, and in doing so relied upon a presumption under sec. 114 of the Indian Evidence Act. Hence this revision It is obvious that the decree under appeal cannot be sustained in law and must be set aside. The mere fact that the defendant did not put his appearance on the date of hearing, that is 28. 8. 52, could not result in a decree being passed against him in the absence of any evidence whatsoever. It was the duty of the plaintiff to have produced his evidence with a view to prove his case, and it could only be on the basis of such evidence that the lower court could have proceeded to decide the case on the merits. I would draw the attention of the court below to this that the direction in O. IX, r. 6 C. P. C. that the court may proceed ex-parte does not and cannot meant that the court may decree the plaintiff's case without recording any evidence because the defendant is absent. All that O. IX r, 6 means is that where the defendant is absent. It would be open to the court to hear the evidence of the plaintiff in the absence of the former, and make such order as that evidence justifies. I must also point out that no presumption such as has been raised by the learned trial Judge arises under sec. 114 of the Evidence Act. The absence of a party from court cannot be a ground for raising a presumption against him that the case brought against him by the plaintiff is true, and does not require any proof, The court can only decree a suit when it is prayed. A reference to sec. 3 of the Evidence Act would show that a fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. I have not doubt whatsoever that in the case before me, the learned Judge below having not recorded any evidence whatsoever, had no material before it from a consideration whereof it could be sale that the court could conclude that the facts mentioned by the plaintiff existed or that their existence was so probable that a prudent man could act upon supposition that they so existed. No prudent man could come to the conclusion from the mere absence of the defendant that the plaintiff's case was proved without any evidence being there to establish it. It may further be pointed out that even where the defendant is absent, the plaintiff is bound to prove his case to the satisfaction of the court, and the burden of proof which rightly lies on the plaintiff is not lightened on that account. In any case, it is the duty of the plaintiff to make out a prima facie case which, if undebutted, would satisfy the court that the case brought by him against the defendant was true and worthy of being decreed. The only exception which appears to me to have been contemplated is with regard to suits based on negotiable instruments under O. XXXVII, r. 2 (2), according to which in default or the defendant's obtaining leave to appear, of the his appearance and defence in pursuance thereof, allegations in the plaint shall be admitted, and the plaintiff shall be entitled to a decree for any sum not extending the sum mentioned in the summons. But in all other cases, it is the duty of the court to record the evidence of the plaintiff even in an ex-parte case, and it cannot dispense with evidence on any such ground as relied upon by the learned small Cause Court Judge, or similar other ground that a verified plaint is itself an evidence, or on the principle of admission by non traverse under O. VIII, r. 5 C. P. C. Reference may be made in support of this view to J, B. Ross & Co. vs. C. R. Scriven (1) Tilak Singh vs. Sheo Nandan (2)and Gurunath Eknath vs. Laxmibai Govind (3 ). This revision muit, therefore, be allowed and judgment and decree of the court of Small Causes set aside and the case remanded to the court for dealing with it according to law. The costs of this revision will abide the result. .;