Ex parte decree requires reliable admissible evidence; failure to prove the pleaded case justified remand for retrial

An ex parte decree cannot stand unless the plaintiff proves the pleaded case with reliable and admissible evidence, even where the defendant remains absent. The plaintiff's sole witness failed to establish the pleaded version, and later affidavit material could not cure the deficiency because affidavit evidence is not substantive evidence except as permitted by the Code of Civil Procedure. Where the recorded evidence shows the claim is not established and further factual issues may arise, retrial may be ordered in the interest of justice. The High Court's orders were set aside and the suit was remanded for fresh disposal.

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Issues: (i) whether the ex parte decree could be sustained on the evidence led by the plaintiff; (ii) whether the suit should be remanded for retrial.

Issue (i): Whether the ex parte decree could be sustained on the evidence led by the plaintiff.

Analysis: Even where the defendant does not appear, the court cannot grant an ex parte decree unless the plaintiff proves the claim by reliable and relevant evidence. The sole witness on which the plaintiff relied did not establish the pleaded case that the third defendant was inducted into possession after the earlier decree, and the evidence in fact contradicted that version. An affidavit filed later could not cure the deficiency, since affidavit evidence is not evidence within Section 3 of the Indian Evidence Act, 1872 except where permitted under Order XIX, Rules 1 or 2 of the Code of Civil Procedure, 1908.

Conclusion: The ex parte decree could not be sustained on the evidence as led.

Issue (ii): Whether the suit should be remanded for retrial.

Analysis: Once the evidence recorded in the suit showed that the pleaded case was not established and that further issues might arise if the third defendant was found in possession even before the earlier decree, a retrial became necessary in the interest of justice. The plaintiff's request for remand was accepted, and the suit was directed to go back for further proceedings with liberty to amend pleadings and lead additional evidence as permitted by law.

Conclusion: The suit was rightly remanded for retrial.

Final Conclusion: The High Court's orders were set aside and the suit was sent back to the trial court for fresh disposal, so the plaintiff's challenge succeeded and the matter was restored for retrial.

Ratio Decidendi: An ex parte decree can stand only if the plaintiff proves the pleaded case with reliable admissible evidence, and where the evidence fails to establish that case or shows that additional issues require adjudication, remand for retrial is justified in the interest of justice.

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