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Judgment
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 11Â3Â2016 passed below Exhibit 77 by the learned Civil Judge, Senior Division, Nagpur, allowing
the application filed by the respondentÂdefendant under Order XIII, Rule 3 of the Code of Civil Procedure for rejection of documents, i.e. the
extended agreements dated 20Â12Â2007 and 31Â1Â2008. 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. Â The petitionerÂplaintiff is directed to take steps to deposit
admissible stamp duty required by the Collector in two months.
In a suit for specific performance of contract, based upon the agreement dated 12Â12Â2007 and the extended agreements dated 20Â12Â2007 and
31Â1Â2008, an ex parte decree was passed on 6Â5Â2009. On 14Â10Â2010, 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 16Â12Â2011 and the decree passed on
6Â5Â2009 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 11Â9Â2012.
The matter proceeded further for recording the evidence. The petitionerÂplaintiff filed his further examinationÂinÂchief and the matter was posted
for his entering into the witnessÂbox. On 9Â3Â2015, the respondentÂdefendant 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 examinationÂinÂchief recorded before setting aside the ex parte
decree should be sent for impounding.
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 reÂrecord the evidence?
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 crossÂexamine 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 nonÂexisted. 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 deÂexhibited. 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.
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 rerecord 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.