VENKATA RAO Vs. LOKREV GALREDDY

JUDGEMENT

(1.) The appeal is against an order of the appellate Court remanding the suit for fresh disposal after taking further evidence. The criticism levelled against the order of remand can best be appreciated after relating the relevant facts. The suit was for recovery of money. At one stage the defendant was set ex parte and some ex parte evidence was led which included the alleged letter written by the defendant to the plaintiff dated ist September, 1959. An ex parte decree was passed in favour of the plaintiff in the first instance on aoth April, 1962. On an application filed by the defendant, I.A. No. 43 of 1963 the ex parte decree was set aside. The defendant filed a written statement contesting the plaintiff's case.

(2.) Issues were settled. Evidence was led afresh. The plaintiff did not file any documents but the defendant relied on four documents, Exhibits B-1 to B-4. Three witnesses were examined on behalf of the plaintiff and three on behalf of the defendant. The District Munsif dismissed the suit. Against the said dismissal., the plaintiff filed an appeal. The learned District Judge was of the view that the District Munsiff was not correct in conducting the trial afresh after the ex parte decree was set aside, and he further observed that the defendant was labouring under a mistaken impression that he was not bound by the evidence adduced before the ex parte decree was passed. He therefore concluded that justice failed because of wrong procedure, and so remanded the suit for fresh disposal.

(3.) It is argued by the learned Counsel for the defendant-appellant that the learned appellate Judge misdirected himself in laying down a procedure contrary to law. He has contended that there is abundant authority for the position that the trial has to commence de novo after an ex parte decree is set aside, and further that any evidence led ex parte could not be evidence against the defendant in the fresh proceedings. These contentions are supported by authority ; Solanlai Mudaliar v. Vadamalai Muthiran, Selvarayan Samson v. S. Amalorpavanadam, where the Bench ruled that where an ex parte decree was set aside in appeal, all proceedings from the stage of defendant's non-appearance were set aside. Mst. Lakshmi Devi v. Roongta and Co. and others, where it was ruled that the ex parte evidence could not be evidence at the de novo trial and Mohan Lai Jain v. Union of India, to the same effect.