AIR 1956 MADRAS 633

Madras High Court

Hon'ble Judge(s): P. V. Rajamannar , C.J. AND Panchapakesa Ayyar , J

Civil P.C. (5 of 1908) , O.9 R.13— Settling aside ex parte decree - Defendant remaining absent even after restoration of suit - Evidence given by plaintiff before setting aside ex parte decree whether can be used after restoration. After defendants were set ex parte, a decree was passed on plaintiff examining witnesses and filing documents. The decree was set aside on application of defendant but the defendant having failed to appear even after restoration of suit a decree was passed once again. It was contended that the evidence adduced by the plaintiff on the prior occasion before the ex parte decree was set aside was 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 : Held that the plaintiff was not prevented from 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 would be an idle farce, if it was necessary that the plaintiff should re-examine the witnesses already examined to repeat what they had said already. The plaintiff could very well inform the Court ....