The legal effect of setting aside the ex parte decree is to place the defendant in the original position when the suit was heard ex parte, erasing any prejudice caused and respecting the defendant's right to cross-examine the witness.

SHIVARAJ PATIL, J.

( 1 ) THIS civil revision petition is filed under Section 50 of the Karnataka Rent Control Act against the order dated 27-9-1993, passed by the iii additional judge, court of small causes, Bangalore, in h. r. c. No. 10854 of 1989 on la. No. 8.

( 2 ) THE petitioner is the tenant. The respondent is thelandlady. They will be referred to as such during the course of this order for convenience.

( 3 ) THE facts, briefly stated, are the following:the landlady filed petition seeking eviction of the tenant under Section 21 (1) (h) of the Karnataka Rent Control Act, 1961 (for short 'the act' ). When the tenant remained absent, the trial court passed the ex parte order on 22-1-1990 granting two months' time to him to vacate the schedule premises. Later, the tenant filed a civil revision petition as well as miscellaneous petition for setting aside the ex parte order. The ex parte order was set aside and the h. r. c. petition was restored. Thereafter the landlady filed la. No. Ii under Section 29 (1) and (4) of the Act, which was allowed on 28-6-1991 directing the tenant to pay the arrears of rent within one month from that date. On his failure to pay the arrears of rent, on 2-3-1993 the court ordered stopping of further proceedings and directed him to vacate the schedule premises. The said order was challenged in c. r. p. No. 373 of 1993. This court set aside the said order by allowing the said c. r. p. on 5-4-1993 directing the trial court to dispose of the main petition within five months. Thereafter, the evidence offered by both the sides were recorded and arguments were heard. During the course of the final arguments the learned counsel for the tenant raised technical objection that the evidence tendered by the landlady on 18-1-1990 before passing the ex parte order of eviction was not admissible in evidence in view of the full bench judgment of the Andhra Pradesh high court in aziz ahmed khan v la. Patel. Hence, la. No. 8 was filed by the landlady under Section 151, C. P. C. supported by an affidavit praying to treat the evidence recorded on 18-1-1990 before passing the ex parte order of eviction as evidence or in the alternative to permit her to tender fresh evidence. After ex parte order of eviction was set aside the tenant has cross-examined the landlady with reference to her evidence recorded prior to passing the ex parte order of eviction without raising objection that the evidence of the landlady recorded prior to passing of the ex parte order of eviction was not admissible in evidence. Thus, after setting aside the ex parte order of eviction and after completion of the recording of evidence on both sides, the arguments were heard. It is at that stage the learned counsel for the tenant raised the question of admissibility of the evidence of the landlady recorded prior to passing of an ex parte order of eviction, which led to filing of la. No. 8, as stated already. The court below having considered the submissions of the learned counsel for the parties allowed la. No. 8 by the order under revision holding that the evidence of P. W. 1 recorded on 18-1-1990 as admissible in evidence under Section 33 of the Evidence Act. Hence, this revision petition.

( 4 ) SRI p. Sathyanarayana, learned counsel for the tenant (petitioner herein) urged that once an ex parte decree was set aside all proceedings from the stage of non-appearance of the defendant leading to the decree stood set aside. Hence, the evidence of the landlady recorded by the trial court in the absence of the tenant prior to setting aside the ex parte order of eviction is not legal evidence so as to attract the application of Section 33 of the Evidence Act. According to him the evidence of the landlady so recorded prior to setting aside the ex parte order is non est. Hence, the learned small cause judge committed manifest error of jurisdiction in allowing la. No. 8.

( 5 ) SRI g. l. vishwanath, learned counsel for the landlady (respondent herein) argued supp

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