JUDGMENT - R.M.S. KHADEPARKAR, J.:---Heard Mr. Ketkar, the learned Advocate for petitioner. None appears for the respondents, though served. The point for consideration which arises in the present petition is, whether the Court can rely upon the affidavit of the plaintiff for decreeing the suit without there being sufficient reason for permitting the party to lead evidence in the form of affidavit instead oral evidence ?

2.The facts in brief relevant for decisions are that, the respondent No. 1 filed his suit for eviction of the petitioner from the suit premises on various grounds including the ground of sub-letting as well as need of the premises for personal occupation of the respondent. The plaint in that regard was lodged in the trial Court on 2nd March, 1984 and on service of summons, the parties appeared before the trial Court on 11th February, 1985 on which date the petitioner filed an application seeking time to file written statement. Similar requests were made by the petitioner on 3rd April, 1985 and 18th April, 1985 and on both the occasions time was granted to file the written statement. Again on 26th April, 1985, the petitioner filed an application seeking further time to file written statement, which was registered by the trial Court. Thereafter on 29th July, 1985, the petitioner filed an application seeking leave to file written statement which was allowed by the trial Court on 17th August, 1985, subject to payment of costs of Rs. 100/- to the respondent No. 1 on or before 23rd August, 1985. The petitioner however, failed to pay the cost as ordered by the trial Court. Nevertheless, the matter was taken up by the trial Court on 26th August, 1985, 8th September, 1985, 21st September, 1985 and on 2nd November, 1985 on which date the trial Court, the petitioner having not paid the costs till then and there being no written statement filed on record, allowed the respondent No. 1 to prove his claim by affidavit. The respondent No. 1 filed his affidavit on the very day and the trial Court after considering the plaint and the affidavit dismissed the suit on 1st January, 1986 for want of sufficient material in support of the claim of the respondent No. 1. On appeal to the lower Appellate Court, the same was allowed by judgment dated 6th February 1988 on the ground that the affidavit filed by the respondent No. 1 was not challenged and there was no evidence on record contrary to the contents of the said affidavit.

4.Referring to section 30(c) read with Order XIX, Rule 1 of the Code of Civil Procedure and placing reliance upon the judgement of the learned Single Judge of this Court, in the matter of (S.K. Palaniappah Kandaiswami Gonder and another v. Superintending Engineer, M.S.E.B. Karad and another)1, reported in 1993(1) Bom.C.R. 350 the learned Advocate for the petitioner submitted that the lower Appellate Court clearly erred in interfering with the order of the trial Court and in allowing the application of the respondent No. 1, inasmuch as the lower Appellate Court failed to take note of the fact that the evidence in the form of affidavit was allowed to be taken on record without any sufficient reason for the same and contrary to the provisions contained in the said section 30(c) read with Rule 1 of Order XIX C.P.C.

5.Persual of the records clearly disclose that on 2nd November, 1985 the trial Court did permit the respondent No. 1 to prove his claim by way of affidavit. However, neither the records nor the impugned order of the lower Appellate Court as well as order of the trial Court disclose that any application was filed by the respondent No. 1 seeking leave of the Court to place the evidence on record in the form of affidavit. The roznama entry of 2nd November 1985 itself discloses that the permission to prove the claim by way of affidavit was granted by the trial Court without there being even a request for the same and in a very causal manner. Indeed as rightly submitted by the learned Advocate for the petitione

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