The evidence recorded prior to the passing of an ex parte decree is admissible after the decree is set aside, provided that the defendant is given an opportunity to cross-examine the witnesses.

1. This revision petition involves a challenge to an order dated, 10.3.92 passed by the learned Munsiff Jhalawar, in civil suit No. 106/79, whereby the learned Munsiff has rejected an application filed by the defendant petitioner, Nashim, Alam, for recall of all witnesses who had been examined before 23.10.89, for fresh examination.

2. A suit for rent and ejectment has been filed by the plaintiff non-petitioner Mukund Singh against Nashim Alam and non-petitioners No. 3,4 and 5. Shri Mukund Singh has pleaded that his father had inducted Shri Mumtaj Alam as tenant. The defendants are legal heirs of Mumtaj Alam. The grounds of ejectment set out in the suit filed by Mukund Singh are based on reasonable and personal bonafide necessity, denial of title and default in payment of rent.

3. On 5.4.80, the trial court passed an order for ex parte proceedings against the defendants because, they were absent. After over 9 years, the petitioner filed an application dated, 10.7.89 for setting aside the order of ex parte proceedings. He claimed that notice of the suit had not been served upon him and he has no knowledge of the proceedings which were going on against him in the suit filed against him by Mukund Singh. By its order dated, 23.10.89, the learned Munsiff, Jhalawar set aside the order of ex parte proceedings by holding that the service of summons was effected by affixation and, according to the learned Munsiff it was in the interest of justice to hear the defendant.

4. Thereafter, an application dated, 27.8.91 was filed by the petitioner for recall of all the witnesses who had been examined prior to 23.10.89. This application was opposed on behalf of the plaintiff non-petitioner No. 1. Non- petitioner No. I agreed for cross-examination of the witnesses, but, opposed the request of the petitioner for recall of the witnesses for making fresh statements. After hearing the parties, the learned Munsiff rejected the prayer made on behalf of the petitioner.

5. While assailing the order of the learned Munsiff, Shri N. K. Maloo, learned counsel for the petitioner has argued that the learned Munsif has acted beyond his jurisdiction while rejecting the application filed on behalf of the petitioner. Shri Maloo argued that once the ex parte proceedings have been set aside, the parties are relegated to the position obtaining before passing of the order of ex parte proceedings. Therefore, the evidence recorded in exparte proceedings cannot be taken into consideration for any purpose whatsoever. Such evidence is not admissible. Shri Maloo argued that only when the witnesses are examined afresh, their statements can be made use of on behalf of the plaintiff. Shri Maloo placed reliance on the decisions of the Supreme Court in Sangram Singh v. Election Tribunal, AIR 1955 SC 425 , Phani Bhushan v. Phani Bhushan, AIR 1957 Cal. 170 , Laxmi Devi v. Roongta & Co., AIR 1962 All. 381 , Arjun Singh v. Mahendra Kumar, AIR 1964 SC 993 and Aziz Ahmad Khan v. I. A. Patel, AIR 1974 A.P. 1 .

6. Shri J. P. Goyal, learned counsel for the non-petitioner No. 1, on the other hand, argued that the order passed by the learned Munsiff does not suffer from any error of jurisdiction or any illegality or perversity. Shri Goyal argued that setting aside of the ex parte proceedings only entitles the defendant-petitioner to cross-examine the witnesses who had already been examined and the examination-in-chief of the witnesses can be treated as sufficient so far as the plaintiff non-petitioner is concerned. If the plaintiff does not want to examine these witnesses afresh, no exception can be taken. Shri Goyal argued that rights and the interest of the defendant-petitioner are fully safe guarded, in as much as, he has ample opportunity to cross-examine the witnesses and to demolish the case of the plaintiff. No injustice, much-less mainfest injustice has been caused to the petitioner by the impugned order.

7. There is an apparent conflict of views between the High Courts