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Whether previous evidence will be wiped off if exparte decree is set aside?


Writ Petition No. 2177 of 2016

Decided On: 03.04.2018

Chandraprakash Dayaramji Lanjewar
Ratnakala Wamanrao Khatkhede and Ors.

Hon’ble Judges/Coram: R.K. Deshpande, J.

Citation: 2018(5) MHLJ 57

1. Rule, made returnable forthwith. Heard finally by consent of the learned counsels appearing for the parties. The challenge in this petition is to the order dated 11-3-2016 passed below Exhibit 77 by the learned Civil Judge, Senior Division, Nagpur, allowing the application filed by the respondent-defendant under Order XIII, Rule 3 of the Code of Civil Procedure for rejection of documents, i.e. the extended agreements dated 20-12-2007 and 31-1-2008. The Court has directed that the said agreements be sent to the Collector (Stamps), Nagpur, for adjudication of the stamp duty and getting the documents impounded. The petitioner-plaintiff is directed to take steps to deposit admissible stamp duty required by the Collector in two months.

2. In a suit for specific performance of contract, based upon the agreement dated 12-12-2007 and the extended agreements dated 20-12-2007 and 31-1-2008, an ex parte decree was passed on 6-5-2009. On 14-10-2010, an application was filed for setting aside the ex parte decree under Order IX, Rule 13 of the Code of Civil Procedure, registered as M.J.C. No. 321 of 2010. It was allowed on 16-12-2011 and the decree passed on 6-5-2009 was set aside. The parties do not dispute that while setting aside the ex parte decree, the defendant was granted permission to file written statement, which was accordingly filed on 11-9-2012.

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3. The matter proceeded further for recording the evidence. The petitioner-plaintiff filed his further examination-in-chief and the matter was posted for his entering into the witness-box. On 9-3-2015, the respondent-defendant filed an application under Order XIII, Rule 3 of the Code of Civil Procedure seeking rejection of the documents, including the agreements. which were exhibited earlier. The Trial Court referred to several decisions cited before it and ultimately held that the documents marked as exhibits in the examination-in-chief recorded before setting aside the ex parte decree should be sent for impounding.

4. The question involved in the present case is whether in the facts and circumstances of this case, the evidence led by the plaintiff and recorded prior to setting aside the ex parte decree gets wiped out completely and the Court is required to re-record the evidence?

5. The Full Bench decision of Gujarat High Court in the case of Shah Bharatkumar Premchand v. M/s. Motilal and Bharulal, reported in AIR 1980 Gujarat 51, takes into consideration the conflicting views taken by the different High Courts on the question. The Full Bench agrees with the view taken by Madras High Court that the evidence recorded before setting aside the ex parte decree does not become non est 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. The Full Bench further makes the distinction and states that it is one thing to say that the proceedings would not bind the defendant and it is another to say that the proceedings must be treated as non-existed. The Full Bench accepts the proposition that 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. It gives an instance that 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.

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6. The Trial Court has relied upon the aforesaid view taken by the Full Bench of Gujarat High Court and accordingly, the documents are sent for impounding. I am not expressing any view on the correctness or otherwise of the decision of the Full Bench of Gujarat High Court, which has taken a view in deviation of one taken by Andhra Pradesh, Allahabad and Calcutta High Courts. The distinguishing feature is that in the decision of the Full Bench of Gujarat High Court, it was not a case where permission to file written statement was granted while setting aside the ex parte decree. In my view, where an order setting aside the ex parte decree with permission to file written statement attains the finality, it has the effect of wiping out the entire evidence recorded prior to setting aside the ex parte decree and the Court will have to re-record such evidence. The evidence of the witnesses of the plaintiff recorded earlier can be used to confront it to the said witnesses, as is permissible under Section 145 of the Indian Evidence Act, being the previous statement of the witnesses. In view of above, no interference is called for in the order impugned. The petition is, therefore, dismissed. Rule stands discharged. There shall be no order as to costs.

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