ZILE SINGH Vs. SANTO AND OTHERS

JUDGEMENT

(1.) SANTO , respondent No. 1, filed that this suit for possession by way of pre -emption of land measuring 1 kanals, 19 Marlas sold by Mangat Ram respondent to the appellant and respondents Nos. 2 to 5 for Rs. 32,000/ - vide sale -deed, Exhibit D -2, dated June (sic), 1975. The suit was initially contested by all the vendees except Zile Singh appellant against whom ex -parte proceedings were taken. After the conclusion of the evidence of both the parties, when the suit was fixed for arguments, Zile Singh appellant filed an application on September 20, 1978 for setting aside ex parte proceedings which on the concession of the plaintiff were set aside vide order dated October 20, 1978. After the filing of the written statement by Zile Singh and the replication by the plaintiff the suit as fixed for December 1, 1978 for evidence of the parties and on that date the counsel for the plaintiff tendered in evidence a copy of the pedigree -table and closed his evidence of the defendants but no evidence having been led on their behalf the case was fixed for January 9, 1979 for arguments. At the time of the arguments when the learned counsel for the plaintiff tried to refer to the evidence which was recorded in the absence of Zile Singh, his counsel took exception to it and argued that any evidence recorded in the absence of his client could not be read against him. Faced with this situation the plaintiff moved an application on January 10, 1079 for permission to re -examine the witnesses alleging that the plaintiff had conceded for setting aside the ex parte proceedings on the clear understanding that the evidence already led would be read as evidence against Zile Singh also but this fact was not specifically recorded in the statements of the parties. This application was opposed by the vendee -defendants and the averments made therein controverted. The learned Sub -Judge rejected the application vide order dated March 29, 1979 and dismissed the suit against all the vendees with the finding that there was no evidence on the basis of which the right of pre -emption was claimed.

(2.) ON appeal, the learned Additional District Judge relying on Kumara Pillai v. Thomas : A.I.R. 1961 Ker 287, held that the evidence recorded in the absence Zile Singh could be read as evidence against him and it was for him to recall the witnesses if he so desired for cross -examination. Consequently, the judgment of the trial Court was reversed and the suit decreed vide judgment dated May 3, 1981. Aggrieved thereby, Zile Singh appellant has come up in this second appeal.

(3.) A similar view was taken by Full Bench of the Andhra Pradesh High Court in Aziz Ahmad Khan v. I.A. Patel : A.I.R. 1979 A.P. 1, and it was held that on the setting aside of the ex -parte decree all proceedings which took place subsequent to the stage of the non -appearance of the defendant leading to the decree are set aside and they are not binding on the defendant. The learned counsel for the respondents, however, relied on a Full Bench decision of the Gujrat High Court in Shah Bharat Kumar Prem Chand v. M/s Motilal and Bharulal : A.I.R. 1980 Guj. 51, but that is no help to him because even according to this decision where an ex -parte decree is set aside it would be unnecessary to record the evidence of a witness recorded before setting aside of the decree provided the said witness is offered for cross -examination after the exparte decree is set aside. The correct position on setting aside the exparte order, therefore, would be that the defendant shall be entitled to the re -hearing of the suit in his presence denovo from the stage when he was proceeded ex -parte. However, it may not be necessary to re examine the witnesses and at would suffice if they are offered for cross -examination by the said defendant as held by the Gujarat High Court in Shah Bharath Kumar Premchand's case (supra) In the present case, the witnesses examined prior to the setting aside of the exparte proceedings against the appellant were neither re -examined nor recalled for cross -examination and their statements as such could not be read in evidence against the appellants