Judgment:
S.K. Pande, J.
1. Being aggrieved by the judgment-decree dated 28-10-99, passed by Additional District Judge, Sohagpur in C.A. No. 10-A/96, reversing the judgment-decree dated 16-5-96, passed by Civil Judge Class I, Sohagpur in C.S. No. 30-A/91, defendant/appellant has preferred this appeal under Section 100, CPC.
2. The appeal has been heard on the following substantial question of law:--
'Whether the finding arrived at by the learned First Appellate Court that the evidence recorded after proceeding ex parte against the defendant/appellant could have been read against him by the Court even after setting aside ex parte order, is perverse and unsustainable in law ?'
3. Defendant/appellant is a tenant of the plaintiff/respondent in the suit house on monthly rent of Rs. 300/- per month. Defendant/appellant remained in arrears with effect from 15-7-80 and did not pay in spite of service of notice of demand. Further, the suit house being old and dilapidated has become unsafe-unfit for human habitation and is required bonafide for carrying out repairs which can not be carried out without the same being vacated. Therefore, plaintiff/respondent instituted C.S. No. 30-A/91 seeking eviction and recovery of arrears of rent. The suit was resisted stating inter alia that defendant/appellant is not in arrears and the suit house is not bonafide required for carrying out repairs etc. On 10-12-92, defendant/appellant was proceeded ex parte. The same day, witnesses Dev Kishan Das (P.W. 1), Hari Shankar (P.W. 2), Shiv Kumar (P.W. 3) were examined. Thereafter, defendant/appellant filed application under Order 9 Rule 7, CPC for setting aside the order dated 10-12-92 proceeding ex parte. This application was allowed vide order dated 6-10-93. Vide order dated 17-2-96, deciding the application under Section 13 (1), (6) of the M.P. Accommodation Control Act (hereinafter be referred as 'Act'), defendant/appellant was directed to pay Rs. 28,200/-, arrears for the period from 6-4-88 to 6-2-96 and thereafter to pay regularly rent at the rate of Rs. 300/- per month. The defendant/appellant did not comply with the order. The case was thereafter fixed for recording of evidence. On 25-4-96, the, defendant/appellant remained absent and his case for evidence was closed.
The Civil Judge vide judgment dated 16-5-96 held that statements of witnesses Dev Kishan Das (P.W. 1), Hari Shankar (P.W. 2), Shiv Kumar (P.W. 3) examined on 10-12-92 can not be read in evidence. There being no other evidence, the suit seeking eviction under Section 12 (1)(a), (g) of the Act and for recovery of arrears was dismissed. Being aggrieved, plaintiff/respondent preferred C.A. No. 10-A/96 before Additional District Judge, Sohagpur. The Court below held that statement of witnesses recorded on 10-12-92 may be read in evidence. There being no other evidence, relying on statements aforesaid of plaintiff/respondent's witnesses, the suit seeking eviction and recovery of arrears of rent has been decreed. Being aggrieved, defendant/appellant has preferred this appeal under Section 100, CPC.
4. It is contended that the finding arrived at by the First Appellate Court that the evidence recorded after proceeding ex parte against the defendant/appellant could have been read against him by the Court even after setting aside exparte order, is perverse and unsustainable in law.
5. On 10-12-92, proceeding ex parte, statement of witnesses Dev Kishan Das (P.W. 1), Hari Shankar (P.W. 2) and Shiv Kumar (P.W. 3) were recorded. Allowing the application under Order 9 Rule 7, CPC, the order proceeding exparte was subsequently, set aside and the parties were directed to produce their witnesses. In Kumara Pillai v. Thomas, AIR 1961 Kerala 287, it has been held, where a defendant, whose application under Order 9 Rule 7 for setting aside an exparte order passed against him was allowed, did not make an application for the cross-examination of the plaintiff or his witnesses who were examined earlier and thus did not avail himself of the right to cross-examine them, the evidence recorded before the defendant entered appearance is binding on him. In Kumara Pillai v. Thomas (supra), witnesses produced for examination were cross-examined by the co-defendant. Since the defendant who was proceeded ex parte did not avail the right of cross-examination of the witnesses, the evidence recorded was read.
In Harba v. Mt. Chandrabhaga, AIR 1931 Nagpur 122 it has been held :--
'Rule 6 is not meant to be a penal clause but is only meant to prevent undue delay. If the defendant chooses not to appear after he has been served, the Court may proceed in his absence, but if he subsequently appears, he ought not to be debarred from taking any further part in the proceedings even if he can show no good cause for his absence : all that the Code says in Order 9 Rule 7, is that, if he does show good cause, the ex parte order may be set aside and the defendant heard in answer to the suit, as if he had appeared on the date fixed. That means that the case is put back to the stage at which it had arrived when the defendant first failed to appear; and the defendant suffers no loss or disadvantage through his non- appearance expects, perhaps, an order for costs. If however, the defendant fails to show good cause, he can not claim any rehearing, and what has already taken place in his absence must stand. As regards future proceedings however, he should not be debarred from appearing and contesting the suit AIR 1925 Mad. 1274, Appr.'
The Court below misread the judgment Kumara Pillai v. Thomas (supra) in the context. The order proceeding ex parte was set aside. Parties were directed to produce witnesses. Plaintiff/respondent on 14-3-96 without producing witnesses aforesaid for cross-examination, closed the case. Therefore, under Section 137, Evidence Act, in the absence of cross-examination, the examination chief alone was not admissible in evidence. On the basis, the Court below ought not to have finally adjudicated the matter in dispute. Therefore, the Court below erred in decreeing the suit on the basis of inadmissible evidence on record. The judgment-decree passed by Court below deserves to be set aside.
6. The suit seeking eviction under Section 12 (1)(a)(g) of the Act was filed on 6-4-88. The defendant/appellant filed the written statement of half a page denying the contents of plaint Paras 1 to 13. The defendant/appellant on several occasions was proceeded ex parte and got the order set aside. He remained in arrears with effect from 6-4-88. As per the order-sheet dated 7-2-96, the rent at the rate Rs. 300/- per month was accepted. The defendant/appellant was directed to deposit Rs. 28,200/-, arrears for the period from 6-4-88 to 6-2-96 and further to deposit monthly rent at the rate of Rs. 300/- per month. Defendant/appellant did not comply with the order. As such, he is in arrears from 6-4-88.
7. Consequently, the appeal is allowed. Setting aside the judgment-decree passed by Courts below, suit is remanded for further proceeding on following conditions :--
(i) Parties shall appear before the Civil Judge concerned positively on 28-2-2005 and produce a certified copy of this judgment.
(ii) Defendant/appellant shall deposit Rs. 28,200/- and further sum at the rate Rs. 300/- per month from 6-2-96 within a period of two months time from today. For non-payment of arrears aforesaid, the Civil Judge shall straightway pass a decree seeking eviction and arrears of rent under Section 12 (1)(a) of the Act.
(iii) On payment of aforesaid sum of arrears, the Civil Judge shall fix the case for recording of evidence. Parties shall produce their witnesses. On the date fixed for evidence, no adjournment on any ground shall be granted and the suit must be finally disposed of by 30th of April, 2005.
Parties shall bear their costs throughout. Counsel fee as per rule or certificate (whichever is less).