Thakkar, J.
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 cross-examine 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 decree 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 defendant's 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 rerecord the evidence of the witness though the defendant was not desirous of cross-examining him and that since his evidence was not so re-recorded, his previously recorded evidence, which according to him was non est, 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 non,est or whether a decree can be passed on the basis of such evidence without rerecording 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 become honest 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 non est 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 Dower of the Court is merely the power to set aside the 'decree'. When the Court accedes to the request made on behalf of the defendant against- whom a decree has been passed ex parte, at the highest, the Court can set aside the ex parte decree. Setting aside the ex parte decree does not mean striking off from the record the evidence already recorded. The legal effect of the order setting aside the decree is to relegate the defendant to the original position when the suit was heard ex parte., The purpose of setting the clock back is to enable the defendant to do what he could have done if he was present on the date when the suit was called out in his absence. The manifest object is to ensure that the -defendant does not suffer any prejudice having regard to the fact that he cannot be blamed for his absence of the date when the suit was heard ex parte. If the defendant had not been prevented by sufficient cause from remaining present on the day on which the suit was heard ex parte, and had been able to remain present, he could have cross-examined the witnesses and/ or raised an objection regarding admissibility of documents or other evidence. When the ex parte decree is set, aside and he is relegated to the position where he is enabled to do what he could not do, the prejudice resulting to him is more than amply erased by affording him an opportunity to crow-examine the witnesses whose evidence was recorded in his absence. Nothing done during his absence can bind him. Therefore, if the Court has admitted a document which is not admissible in evidence, the defendant can insist on the document being de-exhibited. For instance, if an order is passed in his absence that the document is properly stamped or does not require registration, that does not bind him and he can challenge such a ' decision notwithstanding the previous order. There is, however, no warrant for taking the view that the evidence already recorded should be treated as non est or non-existent in the eye of law and the Court must be obliged to re-record the evidence. The prejudice occasioned to the defendant would stand redressed as soon as the witness concerned is offered foe cross-examination. There is no concaeiv4 able purpose in insisting upon the examination-in-chief recorded in his absence being re-recorded. It must be emphasized that Order 9 Rule 13 does not provide that the proceedings which have taken place in the absence of the defendant will stand annulled. All that is provided is that the 'decree' will be set aside. Setting aside of the decree cannot be equated with setting aside of all the previous proceedings and treating the evidence already recorded as non-existent. However, in Aziz Ahmed v. L A Patel : AIR1974AP1 , a Full Bench constituted to consider this question has taken a different view. The view has been taken by the Andhra Pradesh High Court that the previous statement on oath of the plaintiff recorded prior to the setting aside of the ex parte decree was non est and that the plaintiff ought to have been called once again and his evidence recorded afresh even if the defendant had remained absent as is evident from the following passage extracted from paragraph 9 of the report,-
'The question therefore is: can the previous statement on oath of the plaintiff recorded in the absence of the defendant before the ex parte decree was passed be used per se as legal evidence against the defendant at a later stage after the ex parte decree is set aside. Of course, no such question would have arisen had the plaintiff been, called once again and his statement recorded even though it may be in the absence of the defendant as the proceedings were set ex parte. As already noticed, after the proceedings were set ex parte for a second time, the Court has not recorded any evidence in the case; but relied only on the material including the testimony of the plaintiff which formed the basis of the earlier ex parte decree which was get aside. The, legal effect of setting aside the ex parte decree is that all that was done from the date of the defendant's non-appearance in Court becomes non est as against him. Therefore, it can no longer bind him.'
According to Andhra Pradesh High Court, even though the second time also the defendant remained absent, the Court should have gone through the idle formality of re-recording the evidence of the plaintiff. This view has been taken on the premise that the evidence of this plaintiff recorded prior to the setting aside of the ex parte decree be comes non est. No reasons (it must be observed). are articulated for holding that the evidence recorded prior to the sitting aside of the ex parte decree become, non existent in the eye of law. So also no reasons are assigned for the assertion made that 'the legal effect of setting aside the ex parte decree is that all that was done from the date of the defendant's non-appearance in Court becomes non est as against him'. It is merely an ipse dixit of the Court. So far as O. 9, R. 13 is concerned, it only empowers the Court to set aside the decree and stop short at that. Now setting aside the decree does not mean that everything done by the Court prior thereto becomes non-existent in the eye of law. As discussed earlier, the purpose of setting aside the decree is to enable the defendant to do what he could not do as he was prevented from doing so by sufficient cause when the case was heard ex parte. In other words, the object of the provision is to enable the defendant (1) to exercise the right to cross-examine the witness which right he could not avail of when the evidence was recorded earlier in his absence and (2) to question any express or implied decision as regards admissibility of evidence rendered in his absence. The Andhra Pradesh High Court has proceeded further to observe as under:--
'But the natural result of the ex parte decree being set aside was that the parties were,. relegated back to the same position as they occupied before the non-appearance of the defendant. That testimony no longer remained as evidence in the case thereafter.'
With due respect for the Andhra Pradesh High Court it must be said that the proposition affirmed in the aforesaid passage viz. that the testimony recorded earlier no longer remained as evidence upon the setting aside of the ex parte decree is no :more than mere ipse dixit. It has been taken as axiomatic that it is so. In our opinion, there is no warrant for making such an assumption in Order 9 Rule 13 or any other provision of the Civil Procedure Code. Nor is there any warrant for making such an assumption on general principles. In Aziz Ahmed's case reliance has been placed on Phani Bhusan Mukherjee v. Phani Bhusan Mukherjee and others : AIR1957Cal170 , and the Full Bench has sought support from the said decision rendered by Lahiri, J: The entire reasoning of Lahiri, J., is embodied in paragraph (4) of the judgment which reads thus --
'The second ground for which I hold that the Patna decision does not apply to the facts of this case is that in the, Patna case(A) some evidence was recorded and the report of a handwriting expert was received by the Court. But in the case before me there were no materials upon which the Court could pass an ex parte decree in favour of the plaintiff. Mr. Das Gupta has argued that the materials which were before the Court at the time of passing an ex parte decree on the 29th May, 1952 could also be utilised for the purpose of passing another ex parte decree on the 2nd December, 1954. 1 am also unable to accept this argument as correct. I have already stated that the ex parte decree was set aside by an order dated the 3rd March, 1953. The effect of the order setting aside the ex parte decree is that all proceedings subsequent to the stage of the defendant's non-appearance on the 29th May, 1952 would no longer bind him. In other words, as the defendant's non-appearance was condoned by the setting aside of the ex parte decree, the evidence which was recorded in his absence will not also be admissible against him. For these reasons I am unable to hold that the Court had any material upon which it could have pawed an ex parte decree on the 2nd Dec. 1954'
It will be seen that the view taken by Lahiri J. is that the proceedings con ducted subsequent to the non-appearance of the defendant would not bind him. There can be no doubt that once the ex parte decree is set aside, the proceedings which had taken place in the absence of the defendant would not bind him. La hiri J., has, however, proceededii to ob serve that the evidence recorded in the defendant's absence will not be admis sible against him. With great respect for Lahiri J., we do not think any question regarding admissibility of evidence is in volved. The real question is as to whe ther the evidence disappears from the record merely because the , ex. Parte decree has been set aside. It is one thing to say that the proceedings would not bind the defendant, it is another to say that the proceedings must be treated as non-existent. Lahiri, J. rightly observed that the roceedings would not bind the defendant. The logical corollary of that proposition would be that the defendant would be entitled to cross-examine the witness and to challenge the order passed with regard to the admissibility Of any doccument or evidence in his absence. It, however, does not mean that by some fiction the evidence must be re garded as not having been recorded at all. The legal effect of holding that the proceedings do not bind him means that he can question what has happened in his absence., Supposing he does not want to cross-examine the witness, the evi-.dence recorded in his absence does not disappear. No question of admissibility is involved at all. What is possibly meant is that the evidence cannot be used against him. Of course it cannot be used against him till it is subjected to cross-examination if so desired. But if the defendant does not wish to crossexamine the witnesses, it can certainly be used against him. We do not think that there is anything in Phani Bhusan's case which would oblige us to take the view propounded therein, and in Aziz Ahmed's case.
6. In Aziz Ahmed's case reliance has also been placed on the following observations by Ramesam, J. in Selvarayan Samson v. Amalorpavanandam, AIR 1928 Mad 969 (2):-
'When we set aside the ex parte decree, we really set aside all proceedings from the stage of his non-appearance.'
Now, it appears that the true ratio of the said decision had been considered by a 'Division Bench of the Madras High Court itself in Doraiswami v. Palaniandt AIR 1956 Mad 633. After taking into consideration these observations which were explained therein, a Division Bench in AIR 1956 Mad 633 has taken the view that we are inclined to take, namely, that it is not n^cessary to re record the evidence of a witness for the sake of empty formality and that the evidence previously recorded does not become non est but can be treated as evidence subject to the rider that the witness must be offered for cross-exami nation. Rajamannar, C. J., speaking for the Division Bench in Doraiswarni's case, AIR 1956 Mad 633, has dealt with the observations of Ramesam J. in, para graph (3) of the judgment as under.
'In the next case, Sevarayan Samson v. Amalorpavanandarn 55 Mad IJ 262: (AIR 1928 Mad 969 (2)) there was an ex parte decree passed on an application filed under Section 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 set aside the prior order Ming the award. We fail to see how this decision has any bearing on the present case. Reliance, however, is placed on the following observation of Ramesam J.:
'When we set aside the ex parte decree, we really set aside all proceedings from the stage of his non-appearance.' Strictly speaking, this is true in the sense that the absentee defendant is not bound by proceedings, which had taken place in his absence. Such proceedings have not become final as against him. These decisions, however, do not prevent the plaintiff choosing to treat the evidence given by him at the ex parte trial as evidence after the ex parte decree had been set aside and a fresh trial had commenced.
Of course, the defendant would have the right to cross examine the witnesses, who had been examined on behalf of the plaintiff, but it will be an idle farce, if it is necessary that the plaintiff should reexamine the witnesses already examined to repeat what they had said already. The plaintiff can very well inform the Court that the prior evidence may be taken to be the evidence tendered after the fresh trial had commenced. That is what should be deemed to have happened in this case instead of the plaintiff calling the two witnesses. he tendered their evidence already taken as evidence at the fresh trial and, without any objection, the court accepted that evidence'
It will be seen that Ramesam J.'s observations have been rightly construed as laying down that the absenteedefendant is not bound by the proceedings which had taken place in his absence and no more. In the words of Ra.lamannar C. J. strictly speaking, this is true in the sense that absentee defendant is not bound by the proceedings which had taken place in his absence. Such proceedings have not become final as against him'. Having considered. Selvarayan's case AIR 1923 Mad 969 (2), the same High Court in 1956 has taken the view in Doraiswami's case as above and has held that there is nothing in the said decision to prevent the plaintiff from choosing to treat the evidence given by him at-the ex parte trial as evidence after the ex parte decree has been set aside without going through the, meaningless exercise of re-recording the evidence. A rider has of course. been added that it would be subject to the right of the defendant to cross-ex amine the witnesses. In Doraiswami's case the Division Bench has rightly observed that, even if the plaintiff does not in so many words say that the evidence re corded when the defendant was absent may be treated as evidence at the sub sequent stage, he must be deemed to have said so as is evident from the following passage.
'The plaintiff can very well inform the Court that the prior evidence may be taken to be the evidence rendered after the fresh trial had commenced. That is what should be deemed to have happened in this case'.
We may also mention that in Selvarayan's case the Court was not concerned with the question of re-recording of evidence. In that case an award was filed before the Court in the absence of a party and an ex parte decree in terms of the award had been passed. The ex parte decree was ordered to be set aside. Even so it was argued that the award remained intact and alive. It was in that context that Ramesam, J. had observed that, with the setting aside of the ex parte decree the award must also be deemed to have been set aside, and it was in that context that the aforesaid observation had been made. Selvarayan's case was explained by the same High Court subsequently in 1956 in Doraiswami's Case. Ultimately the Madras High Court has taken the view which we are inclined to take. No doubt the Andhra Pradesh High Court has differed from the said view as discussed in paragraph 19 of the decision in Aziz Ahmed's case. The reasons advanced for differing from the said view are two viz: (1) that the earlier proceedings would be non est and (2) that the previous statement of a witness cannot be considered to be relevant and admissible and be used as evidence at the subsequent stage unless it satisfies the conditions of Section 33 of the Indian Evidence Act. We have already dealt with the first dimension of the matter and for the reasons indicated h6reinabove we are unable to agree with the Andhra Pradesh High Court on this point.
7. The argument in the context of Section 33 of the Indian Evidence Act may now be examined. The provision reads thus:-
'33. Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving in a subsequent judicial proceeding, or in a' later stage of the same judicial proceeding, the truth of the facts which it states. when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, tinder the circumstances of the case, the Court considers unreasonable:
Provided -
that the proceeding was between the same parties or their representatives in interest;
that the adverse party in the first proceeding bad the right and opportunity to cross-examine:
that the questions in issue were substantially the same in the first as in the second proceeding.
Explanation. :- A criminal trial or Inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section'.
Section 33 of the Evidence Act relates to the relevancy of evidence of a witness recorded in a judicial proceeding in a Court of law in a subsequent judicial proceeding or at a later stage of the same judicial proceeding when the witness is dead or cannot be found or is incapable to adduce evidence or is kept out of the wav by the adverse party etc. We are not concerned with such a case and it would not be legal or proper to draw the inference from Section 33 that evidence recorded prior to setting aside of the ex parte decree would become irrelevant unless the evidence is re-recorded. Section 33 makes evidence of witnesses in certain circumstances relevant. Since we are not concerned with the case of a witness who is covered by Section 33, it is unnecessary to examine the provisions contained therein. But even, if one were to take into account the principle enshrined in Section 33, what is of importance is to realise that the proviso enjoins that one of the conditions of admitting such evidence would be that the adverse party in the first proceeding had the right and opportunity to cross examine the witness. The raison d'etre of the rule. and essence of the matter is that the admissibility of evidence depends upon the obligation to afford to the other side the opportunity to cross examine the witness. We are, however, considering a case where the defendant -does not wish to cross-examine or does not remain present to cross-examine the ,witness, though the witness is offered for cross-examination and the opportunity m that behalf is afforded to the appellant. The question then is whether the evidence already recorded would become non est notwithstanding the fact that such opportunity is offered and the cransigent defendant refuses to avail of it or does not remain present to avail of it. We may also say (what is obvious) that when the evidence was recorded, it was legally and properly recorded. Merely because the defendant was prevented by sufficient cause from remaining present when the evidence was recorded it will not be rendered illegal. Of course, in order to do him justice the decree would be set aside by the Court and he would be relegated to the same position. That is to say, he would be afforded an opportunity to do what he could have done if he was not so prevented and was present. BV no stretch of imagination, however, can it be said that the evidence recorded in his absence was rendered illegal and became nonexistent subsequently when the Court came to the conclusion that the defendant was prevented by sufficient. cause from remaining present.
8. Lastly we must deal with Mst.Lakshmi Devi v. Roongta and Co. : AIR1962All381 , on which reliance was placed in Aziz Ahmed's case. In Mst. Lakshmi Devi's case reliance has in turn been placed on Phani Bhusan's case : AIR1957Cal170 , which we have already discussed, and it has been observed as under:-
'The principle laid down, if we may saV so with respect, appears to be un exceptionable. A decree can be passed against the defendant only on admissible material and any evidence produced in his abse ' nee cannot be utilised against him and treated as admissible material. The earlier ex parte decree against the appellants having been set aside they became entitled to be relegated back to the stage at which they were absent and could insist that everything which had been done in their absence should be done again in their presence. The evi dence of Gobardhan had been recorded in their absence. They had no opportunity of cross-examining the witness. The reason for that absence having been found to be sufficient they could say that if the evidence of Gobardhan was to be relied upon against them, Gobar dhan should be examined again. On the basis of the evidence recorded in their absence, the decree in question could not, therefore, be passed against them'.
It has rightly been observed that the defendants would become entitled to be relegated back to the stage at which they were absent. We are, -however, unable to agree with the view that they can insist upon redoing of everything which had been done in their absence with respect to the learned Judges, in our opinion, there is no warrant for this proposition. What the defendants can insist upon is to do what they could have done if they were present. It is one thing to say that they should be given an opportunity to erase the prejudice by permitting them to do what they could have done. It is another to say that they can insist on everything being redone in their presence which was done in their absence. Sound principle and anxiety for doing justice demand that the defendant is afforded an opportunity to do what he could not do when he was Prevented1from remaining Present when the case was heard in his absence. There is, however, no principle in commanding that everything which was done should be re-done. The purpose of reopening what has been done is to enable the defendant to cross-examine the witness or to challenge the decision rendered in his absence regarding admissibility of document which might occasion prejudice to him, and no more. In our opinion, therefore, with respect to the Allahabad High Court, we are unable to agree with the view propounded therein. Consequently we are unable to subscribe to the view adopted by the Andhra Pradesh High Court on the basis thereof.
9. To summarize the situation, the view taken by the Andhra Pradesh High Court in Aziz Ahmed's case is mainly based on two grounds:
(1) that the evidence recorded in the absence of the defendant prior to the setting aside of the ex parte decree at a point of time when the defendant was prevented by sufficient cause from remaining present becomes non-existent or non est when the den is set aside upon the Court taking the view that there was sufficient cause for absence and
(2) such evidence is rendered illegal or inadmissible by reason of Section 33 of the Evidence Act. In our opinion, there is no warrant in any provision of Civil Procedure Code or the first principles of law for upholding the first proposition, namely, that such evidence would become non est or non-existent in the eye of law. So far as the second proposition 'is concerned, there is nothing in Section 33 which makes such evidence inadmissible. In fact the principle underlying Section 33 is respected rather than violated when the witness is offered to the defendant for cross-examination and he is afforded an opportunity which he could not avail of on account of his absence. There is nothing in Section 33 which requires re-recording of the evidence even when the defendant 1refuses to avail of the opportunity to cross-examine or remains absent.
10. We do not see any good reason to opt for a view which would oblige a Court to waste public time by re-recording the evidence without any point or purpose. Even if the Courts were not carrying the unbearable burden of huge arrears which the Courts are doing today. there is no rational ground for wasting Judge-time as also public time in fruitlessly doing something without any point or purpose. Would re-recording of evidence promote the ends of Justice? Would it prevent miscarriage of Justice? The proponents of the view that the evidence must be re-recorded cannot answer these questions in the affirmative. The re-recording of evidence cannot help the defendant if he again remains absent. Nor can it help the defendant if he refuses to cross-examine the witness whose evidence was recorded in his absence. The whole purpose of relegation is to afford him an opportunity to cross-examine. If he does not wish to do so or if he chooses to remain absent, how can any benefit accrue to him or how can ends of justice be furthered merely by rerecording the same evidence once again? Even God cannot help those who do not want to help themselves. Besides, there is sound principle to buttress the proposition that even if there is something amiss in the conduct of a case, so long as it does not go to the root of the matter and does not occasion failure of Justice, law does not insist on setting at naught what has been done in obeisance to considerations of pragmatism and expediency. The institution can ill-afford the time-cost of doing so in view of the long queue of citizens waiting for Justice. The queue will become longer and their misery multiplied without any compensating benefit to the cause of Justice. This principle has been accorded recognition even in criminal jurisprudence where the Court is concerned with the life and liberty of a citizen. Section 215 of the Code of Criminal Procedure provides that no error in . stating the offence or necessary particulars in the charge and no omission to do so shall be regarded at any stage of the case as material unless the accused was misled and-- it has occasion a failure of justice. Section 299 of the Code of Criminal Procedure empowers a Court to Examine a witness produced on behalf of the prosecution and to record his evidence in the absence of an accused person, if the accused has absconded and there is no immediate prospect of arresting him, or if the deponent is dead or incapable of giving evidence or cannot be found etc. The significance of this provision cannot be over-emphasized because it shows that even in a criminal case the evidence of a witness for the prosecution recorded in his absence though not subjected to cross-examination can be received in evidence under certain circumstances. Of course the Court would have to consider how much weight should be attached to that evidence and would have to evaluate the evidence with immense care and caution. The point of the matter, however, remains that the evidence is treated as relevant and admissible and can be acted upon even when the witness cannot be cross-examined. If in a criminal case the evidence recorded in the absence of the accused can be treated as relevant it is difficult to comprehend on what principle the evidence in a civil case can be considered as irrelevant and can be disregarded notwithstanding the fact that witness is offered for cross-examination merely because the evidence recorded ex parte is not re-recorded. Unless, therefore, there is any compulsion to take the view that the evidence recorded before. the setting aside of the ex parte decree becomes non est. it would be impossible to subscribe to the view that the evidence already recorded must be re-recorded just for the sake of satisfying a concept or a notion. And compulsion there is none. We, therefore, have no hesitation in preferring the Madras view expounded in Doraiswami v. Palaniandi, AIR 1956 Mad 633, to ,he view of the other High Courts and in answering the question referred to us as under:-
It is unnecessary to re-record the evidence of a witness recorded before the setting aside of an ex parte decree provided the said witness is offered for cross-examination after the ex parte decree is set aside. If the defendant refuses to avail of the opportunity to cross examine the witness after the setting aside of the ex parte decree, or if the defendant again remains absent when the case comes up for hearing, the evidence recorded prior to setting aside of the ex parte decree can be treated as evidence for the purpose of passing a decree.
The record may now be placed before the learned single Judge for proceeding further with the appeal, the reference made to the Full Bench having been answered in the aforesaid terms.
11. Order accordingly.