( 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.

( 4 ) THERE is a sharp cleavage of judicial opinion in regard to the question whether the evidence of a witness recorded before the setting aside of an ex-parte decree can be treated as nonest or whether a decree can be passed on the basis of such evidence without re-recording the evidence of the same witness again so long as the said witness is offered for cross-examination. In other words the question is whether the evidence already recorded should be treated as non-existent and the same evidence should be re-recorded. The Madras High Court has taken the view that the evidence recorded before the setting aside of the ex-parte decree does not becomes nonest and when the ex-parte decree is set aside all that the other side can insist upon is the right to cross-examine the witness if he so desires. No doubt any decision taken by the Court regarding admissibility of document or otherwise would not be binding to the other side but subject to this it is not necessary that the evidence should be re-recorded even if the other side does not wish to cross-examine or the other side remains absent. The view taken by some other High Courts is that the evidence recorded before the setting aside of the ex-parte decree becomes nonset and is not legal evidence at all once the ex-parte decree is set aside. The evidence must be re-recorded by the Court and if this is not done any decree passed on the basis of the evidence already recorded would be unsustainable. Three High Courts namely Andhra Pradesh Allahabad and Calcutta have subscribed to this view.

( 5 ) ORDER 9 Rule 13 of the Code of Civil Procedure empowers a Court to make an order setting aside a decree passed ex-parte against the defendant if the Court is satisfied that the summons was not duly served or that the defendant was prevented by sufficient cause from appearing when the suit was called out for hearing. It is necessary to emphasize that the power of the Court is merely the power to set aside the decree. When the Court accedes to the request made on behalf of the def