JUDGMENT V.C. Misra, J.
Sri K.N. Rai, learned Counsel represents the petitioner and Sri D.S. Tewari and learned Standing Counsel represent the respondents.
1. The facts of the case in brief are that a money suit was filed in the Court below by the plaintiff-appellant (respondent No. 2 in this writ petition) against the defendant (petitioner in this writ petition) for an amount of Rs. 1500/- with interest thereupon on the basis of a pronote executed by one Sri Munni Tewari. After a period of two years from the death of said Muni Tewari the petitioner defendant inherited the property, assets and the libality of Munni Tewari. The said pronote was made the basis of the suit. The trial court vide its judgment and order dated 22.9.1984 (Annexure No. 3 to the writ petition) dismissed the suit since the pronote could not be proved in accordance with law. The plaintiff being aggrieved filed first appeal before the District Judge. Ballia- respondent No. 1, who vide its impugned order dated 11.8.1989 (Annexure No. 4 to the writ petition) allowed the appeal, set aside the judgment and decree of the trial court and decreed the plaintiffs suit (respondent No. 2 in the writ petition) with costs.
2. Feeling aggrieved by the order dated 11.8.1989 (Annexure No. 4 to the writ petition) of the respondent No. 1, the petitioner filed this writ petition.
3. The respondents till date have not filed their counter affidavit in rebuttal to the averments made in the writ petition, in spite of time being granted to them on several dates on the request of their learned Counsel. It is settled law that if no affidavit in rebuttal is filed and the averments made in the affidavit are not controverted then the said averments must be accepted as true and correct and the presumption is drawn in favour of the petitioner in terms of Section 114 Illustration (g) of the Indian Evidence Act, 1872, as laid down in catena of decisions including A.I.K. 1966 Alld. page 156 A.I.R. 1962 Alld. page 407 A.I.R. 1987 S.C. page 479 and 1999 (82) Factory Law Report page 709. In the absence of counter affidavit, this Court is left with no option but to accept the averments made in the writ petition to be correct and true.
4. I have looked into the record of the case and find that the appellate court has committed manifest error of law apparent on the face of the record by shifting the burden of proof on the plaintiff defendant on the basis that he had neither specifically admitted nor denied the issuance of the execution of the pronote by Sri Munni Tewari and should have adduced his oral evidence to disprove the case of the plaintiff, which he failed to produce, therefore, the evidence of the plaintiff should be believed. The trial court had considered the entire evidence on record and had rightly come to the conclusion that the plaintiff had failed to substantiate his case by proving the execution of the pronote which was the basis of the suit. The appellate court has failed to give any reasons much less cogent reasons for not accepting the findings of the trial court while setting aside the same by shifting the onus/burden on the petitioner-defendant to disprove the case.
5. In view of the above said facts and circumstances of the case, the writ petition is allowed. The impugned order dated 11.9.1989 (Annexure No. 4 to the writ petition) is hereby quashed The case is remanded back to the appellate court to decide the same in accordance with law by passing a reasoned order after considering the entire evidence and other material available on record, in accordance with law. No order as to costs.