Evidence adduced at an ex parte trial can be treated as evidence after a fresh trial has commenced, provided that no prejudice is caused to the defendant.

RAJAMANNAR, C.J. :- This is an appeal by the defendants in O.S. No. 233 of 1945 on the file of the Subordinate Judge of Coimbatore from the decree passed against them in the following circumstances. On 21-10-1946 the defendants were set ex parte and a decree was passed against them after the plaintiffs had examined two witnesses and filed two documents. On application by the defendants, the ex parte decree was set aside.

After the suit was thus restored to file, it was adjourned once, because the defendants were not ready, and, finally trial stood posted to 13-12-1950. On that day, an adjournment was asked for on the defendants behalf, but was refused. Thereupon defendants vakil reported no instructions. The defendants were called and were absent and they were set ex parte. The learned Judge then passed a decree as prayed for. The judgment, which is short, is as follows :

On the evidence already on record, the suit is decreed as prayed for with costs. Time two months."

The contention of Mr. S. Ramachandra Aiyar, learned counsel for the defendants-appellants, is that the evidence adduced by the plaintiff on the prior occasion before the ex parte decree was set aside is not legal evidence, which could be taken, into account at the trial after the decree had been set aside and therefore there was no evidence on which the plaintiffs could obtain a decree.

He relied upon certain observations in two decisions of this Court as supporting his contention that when an ex parte decree is set aside, all the proceedings from the time the defendant was set ex parte must be deemed to have been set aside, and consequently, any evidence given by the plaintiff after the defendant had been set ex parte cannot be used as evidence after the suit has been restored by the ex parte decree being set aside.

2. The first of these decisions is that in Solanalai Mudaliar v. Vadamalai Muthiran, 23 Mad LJ 273 (A). That was a case on the construction of S. 36, Stamp Act. At an ex parte trial, a certain document was admitted in evidence. Subsequently the ex parte decree was set aside and the suit was restored for fresh trial. Objection was taken by the defendant to the admissibility of the document. It was contended on behalf of the plaintiff, relying upon the language of S. 36, Stamp Act, that the instrument in question had been "admitted in evidence". Sundara Aiyar, J. repelling this contention said :

"It was at the ex parte trial, that the note was admitted in evidence......When the promissory note was put in at the second trial the document did not remain as evidence. The whole ex parte proceeding has been set aside and the trial of the suit had to commence de novo. I am of opinion that S. 36 applies only to a case where what is in evidence is sought to be expunged by a party who objects that the evidence was wrongly admitted. But here the promissory note had to be tendered in evidence again at the second trial as the previous proceedings proved abortive in law when they were set aside."

With great respect to the learned Judge, we are in entire agreement with his decision in that case. Simply because a particular document was admitted in evidence at a time when the defendant was ex parte, it does not mean that the defendant cannot object to the admissibility of the document, when the ex parte decree against him is set aside and he is allowed to participate in the trial.

Technically speaking the plaintiff would have to tender again the document at the fresh trial and then it would be open to the defendant to raise his objection as to its admissibility. This decision does not help the appellants.

3. In the next case, Selvarayan Samson v. Amalorpavanandam 55 Mad LJ 262 : (AIR 1928 Mad 969 (2)) (B) there was an ex parte decree passed on an application filed under S. 20 of Sch. II, Civil P.C. which was subsequently registered as a suit. In appeal, the ex parte decree was set aside. It was held that the effect of the setting aside of the ex parte decree was to