BASHIR AHMED Versus ABDUL WAHID

IHSAN-UL-HAQ CHAUDHARY, J.- The respondent filed a suit for recovery of Rs. 10,000/- as arrears of rent. The brief background of the matter is that the respondent is owner of two shops, which wore let out-by him to the petitioner at monthly rent of Rs. 100./- each. The petitioner did not pay the rent, therefore, the respondent was constrained to file ejectment petition, which was unsuccessfully contested by the petitioner upto the Hon'ble Supreme Court. The decision is reported as Bashir Ahmad v Abdul Wahid (1988 SCM R 2102). Thereafter the respondent filed the suit for recovery of the arrears of rent. The same was initially contested by the petitioner but thereafter he absconded himself. The learned trial Court decreed the suit vide ex-parte judgment and decree dated 4.2.1988. The petitioner thereafter moved an application on 16.3.1988 for setting aside the exparte decree. The same was contested by the respondent. The trial Court framed the following issues on 25.5.1988:-

The application was adjourned to 14.9.1988 for the evidence of the petitioner thereafter he was afforded four more opportunities within a span of about she months but he failed to produce any evidence in support of the application and ultimately his evidence was closed on 24.5.1989 and the application was dismissed for want of proof. The petitioner assailed this order through an appeal before the District Judge, who dismissed the same vide order dated 20.9.1989. Hence the present petition, which was admitted to regular hearing and notice was issued to the respondent, who has appeared and contested the petition.

2.The learned counsel for the petitioner in support of the petition argued that the application was within time as the same could have been moved within three years. In this behalf reliance has been placed on Rehman Weaving Factory v. Industrial Bank (PLJ 1981 S.C. 146) and Muhammad Shall v. Mst. Razia Ghafoor (NLR 1987 CLJ 519). It is added that issue No. 2 was proved by the affidavit of the petitioner as well as his learned counsel. The arguments are summed up with the submission that the petitioner could not appear on 24.5.1989 on account of death of his grand- daughter on 22.5.1985. It is added that he sent his son to apprise his learned counsel and get a date. It is; therefore, concluded that the trial Court was not justified in refusing adjournment and closing his evidence.

3.On the other hand, the learned counsel for the respondent argued that the application of the petitioner for setting aside the ex-parte decree was not dismissed as time barred but was dismissed for lack of proof on issue No. 2. It is added that this case has a chequered history. The petitioner contested the ejectment petition upto the level of the Hon'ble Supreme Court and thereafter filed a suit for declaration, which was also dismissed. The arguments are concluded with the submission that the trial Court was fully justified to decide issue No. 2 against the petitioner for lack of proof. It is added that the Court was not informed as to the death of the grand-daughter.

4.I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record. The petitioner was under a legal obligation as provided in sub- section (1) of section 115 C.P.C, to support his petition with pleadings, documents and orders of subordinate Courts. There is nothing on the record to show that the trial Court proceeded hastely or illegally while closing the side of the petitioner. The petitioner was afforded five opportunities to lead evidence to discharge the onus of issues No. 2 but he failed to bring any evidence on the record. Therefore, he cannot blame anybody except himself.

5.The next contention is that the Courts below have failed to appreciate that the application was supported by the affidavits of the petitioner and .His learned counsel. The affidavits can only be considered in support of an application when those are filed on the direction of the Court, otherwise evidence is to be recorded in Court. In this behalf Section 30, rule 4 Order XVIII and rule 1 Order XIX C.P.C, are very clear. In this case the trial Court never invoked the provisions of Order XIX C.P.C, and directed the parties to prove. Their respective contentions by affidavits. On the other hand, the trial Court framed issues and adjourned the suit for recording of the evidence. Therefore, the affidavits of the petitioner and his learned counsel were not relevant for the decision of issue No. 2. 1h this context section 30 read with rule 1 Order XIX and rule 4 Order XVIII C.P.C, are relevant and very clear. In this behalf, reference can be made to Bank of Credit & Commerce International (Overseas) Ltd. Vs. Karachi Tank Temiinal Ltd. And 3 others (P.L.D. 1988 Karachi 261), Srinivasa Ayyangar Vs. Pichumani Ayyangar (A.I.R. 1933 Madras 164) and Dominion of India Vs. Rupchand Heerachand (A.I.R. 1953 Nagpur 169).

6.This is not all. The so-called affidavits of the petitioner and the learned counsel appended with the application for setting aside the ex-parte decree cannot by any stretch of imagination be treated as 'affidavits'. The affidavit was a declaration of facts made in writing and sworn on oath. In this behalf, reference can be made to cases of Dominion of India (Supra), Pesu Mal- Harbhagwan Vs. Bishen Das-Mewa Ram (AIR 1927 Lahore 376) and Mangal and others v. Emperor (AIR 1914 Allahabad 197). While the contents and form of the affidavit as far as Lahore High Court is concerned have been provided in Part B, Chapter 11 B of the High Court Rules and Volume IV. The relevant Rules are 8, 9, 12,14 and 15 which are reproduced as under:-

9. (i)Every affidavit containing any statement of facts shall be divided into paragraphs, and every paragraph shall be numbered consecutively, and, as nearly as may be, shall be confined to a distinct portion of the subject.

(iii)When the declarant in any affidavit speaks to any facts within his own knowledge, he must do so directly and positively, using the words 'I affirm' or ' I make oath and say.'

The affidavits of the petitioner and his learned counsel filed with application under Order IX rule 13 C.P.C read as under:-

This is by and large the form of the affidavits which are being submitted in this Court as well as the subordinate Courts. The same do not fulfil the basic requirements of a valid affidavit as contained in the above quoted provisions particularly rules 8,9 and 15. The main requirements of the affidavit according to these rules are:

We can divide the affidavit into folio wing three parts in accordance with the above requirements:-

When looked at the affidavits in the case in hand the same are just waste paper and cannot be read in evidence. This is beside the point that neither the parties ever agreed to prove the application by affidavit nor the Court directed them to submit affidavit in support of the application. On the other hand, the application was adjourned for evidence of the petitioner and he got five opportunities for that purpose but failed to avail the same.

8.The upshot of the above discussion is that there is no merit in this revision. The same is dismissed with costs.