SHAH BHARATKUMAR PREMCHAND Vs. MOTILAL BHARUMAL

JUDGEMENT

(1.) Does the law command a purposeless re-enactment of a Court scene by re-recording the evidence of a witness even when the defendant after the setting aside of an ex-parte decree refuses to crossexamine the Witness upon being offered for Cross-examination? Or remains absent? Madras High Court says `no. Andhra Pradesh and some other High Courts say `yes. A Division Bench has referred the question to a larger Bench to decide with which school we should throw our lot.

(2.) The facts essential for the purposes of resolving the question are few. Appellant-defendant remained absent when the suit giving rise to the appeal reached hearing. The Court recorded the evidence adduced by the plaintiff in his absence and passed a decree ex-Parte. The said degree was set aside on the Court concluding that there was sufficient cause for the absence of the defendant. When the matter came up for hearing after the ex-parte decree was set aside the defendants counsel was present but he himself was not. The witness whose evidence was recorded earlier in the absence of the defendant was offered for cross-examination. Counsel for the defendant did not avail of the opportunity but filed a purshis that as there was no legal evidence on record he did not want to adduce evidence. Again a decree was passed which was modified by the appeal Court. Thereupon the defendant has appealed to this Court.

(3.) It was argued in the course of the hearing before the learned single Judge that it was not sufficient that the witness concerned was offered for cross-examination after the setting aside of the ex-parte decree. It was obligatory to re-record the evidence of the witness though the defendant was not desirous of cross-examining him and that since his evidence was no so re-recorded his previously recorded evidence which according to him was nonest could not form the basis of the decree. Hence the reference to the larger Bench.