JUDGMENT 1. This revision petition involves a challenge to an order dated, 10.3.92 passed by the learned Munsiff Jhalawar, in civil suit No. 106/79, whereby the learned Munsiff has rejected an application filed by the defendant petitioner, Nashim, Alam, for recall of all witnesses who had been examined before 23.10.89, for fresh examination. 2. A suit for rent and ejectment has been filed by the plaintiff non-petitioner Mukund Singh against Nashim Alam and non-petitioners No. 3,4 and 5. Shri Mukund Singh has pleaded that his father had inducted Shri Mumtaj Alam as tenant. The defendants are legal heirs of Mumtaj Alam. The grounds of ejectment set out in the suit filed by Mukund Singh are based on reasonable and personal bonafide necessity, denial of title and default in payment of rent. 3. On 5.4.80, the trial court passed an order for ex parte proceedings against the defendants because, they were absent. After over 9 years, the petitioner filed an application dated, 10.7.89 for setting aside the order of ex parte proceedings. He claimed that notice of the suit had not been served upon him and he has no knowledge of the proceedings which were going on against him in the suit filed against him by Mukund Singh. By its order dated, 23.10.89, the learned Munsiff, Jhalawar set aside the order of ex parte proceedings by holding that the service of summons was effected by affixation and, according to the learned Munsiff it was in the interest of justice to hear the defendant. 4. Thereafter, an application dated, 27.8.91 was filed by the petitioner for recall of all the witnesses who had been examined prior to 23.10.89. This application was opposed on behalf of the plaintiff non-petitioner No. 1. Non- petitioner No. I agreed for cross-examination of the witnesses, but, opposed the request of the petitioner for recall of the witnesses for making fresh statements. After hearing the parties, the learned Munsiff rejected the prayer made on behalf of the petitioner. 5. While assailing the order of the learned Munsiff, Shri N. K. Maloo, learned counsel for the petitioner has argued that the learned Munsif has acted beyond his jurisdiction while rejecting the application filed on behalf of the petitioner. Shri Maloo argued that once the ex parte proceedings have been set aside, the parties are relegated to the position obtaining before passing of the order of ex parte proceedings. Shri Maloo argued that once the ex parte proceedings have been set aside, the parties are relegated to the position obtaining before passing of the order of ex parte proceedings. Therefore, the evidence recorded in exparte proceedings cannot be taken into consideration for any purpose whatsoever. Such evidence is not admissible. Shri Maloo argued that only when the witnesses are examined afresh, their statements can be made use of on behalf of the plaintiff. Shri Maloo placed reliance on the decisions of the Supreme Court in Sangram Singh v. Election Tribunal, AIR 1955 SC 425 , Phani Bhushan v. Phani Bhushan, AIR 1957 Cal. 170 , Laxmi Devi v. Roongta & Co., AIR 1962 All. 381 , Arjun Singh v. Mahendra Kumar, AIR 1964 SC 993 and Aziz Ahmad Khan v. I. A. Patel, AIR 1974 A.P. 1 . 6. Shri J. P. Goyal, learned counsel for the non-petitioner No. 1, on the other hand, argued that the order passed by the learned Munsiff does not suffer from any error of jurisdiction or any illegality or perversity. Shri Goyal argued that setting aside of the ex parte proceedings only entitles the defendant-petitioner to cross-examine the witnesses who had already been examined and the examination-in-chief of the witnesses can be treated as sufficient so far as the plaintiff non-petitioner is concerned. If the plaintiff does not want to examine these witnesses afresh, no exception can be taken. Shri Goyal argued that rights and the interest of the defendant-petitioner are fully safe guarded, in as much as, he has ample opportunity to cross-examine the witnesses and to demolish the case of the plaintiff. No injustice, much-less mainfest injustice has been caused to the petitioner by the impugned order. 7. There is an apparent conflict of views between the High Courts of Allahabad, Andhra Pradesh and Calcutta on the one hand and Madras as well as Gujrat on the other hand. In one of the earliest decisions given in Selvarayan Samson v. Amalopabanandam, AIR 1928 Madras 969 , a Division Bench of Madras High Court held that when exparte decree is set aside all proceedings from the stage of non-appearance of the party stands set aside. That was a case in which an exparte decree was passed on an application filed under section-20,Schedule-II C. P. C., which was subsequently registered as a suit. In appeal ex-parte decree was set aside. That was a case in which an exparte decree was passed on an application filed under section-20,Schedule-II C. P. C., which was subsequently registered as a suit. In appeal ex-parte decree was set aside. It was held that the effect of setting aside of the ex-parte decree was to set aside the prior order filing the award. 8. The same very question again arose before a Division Bench of the Madras High Court in Dorai Swami V. Palaniandi, AIR 1956 Madras 633 . After making a reference to the decision in Selvarayan Samson's case (supra), the Division Bench proceeded to observe : "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 exparte 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 re-examine 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." 9. That was a case in which objection was raised on behalf of the defendant that after the ex-parte decree was set aside, the evidence adduced by the plaintiff on the prior occasion was to 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 decree could be passed. This argument was rejected by the Division Bench of the Madras High Court. 10. In Phani Bhushan v. Phani Bhushan (supra), a Sigle Judge of Calcutta High Court took the view that with the setting aside of ex parte decree, the evidence which was recorded in his absence will also not be admissible against him and the Court had no jurisdiction to pass a fresh decree on the basis of material which was available to the Court at the time of passing of the ex parte decree. 11. 11. In Mst. Laxmi Devi v. Roongta & Co. -(supra), a Division Bench of Allahabad High Court followed the decision of Calcutta High Court in Phani Bhushan v. Phani Bhushan (supra) and held that : "Once an ex parte decree passed against a party is set aside, the party is relegated back to the stage at which it was absent and such party could insist that everything which had been done in its absence should be done again in its presence." 12. In Aziz Ahmad Khan's case (supra), a Full Bench of Andhra Pradesh High Court followed Calcutta and Allahabad High Courts and dissented from the decisions of Madras High Court in Doraiswami's case (supra). The Full Bench held that where an ex parte decree is set aside all proceedings which took place subsequent to the stage of non-appearance of the defendant leading to the decree, are set aside and they are not binding on the defendant. The evidence of the plaintiff recorded by the trial court in the absence of a defendant prior to setting aside of the ex parte decree is not legal evidence under section-33 of the Evidence Act and the same cannot be looked into and made the basis of the judgment and decree at a fresh trial, even though, the fresh trial may also be ex parte. The full Bench held that, none of the conditions specified in Section 33 for use of the statements recorded prior to the passing of ex parte decree, as evidence in the subsequent trial is satisfied. Therefore, such evidence cannot be said to be relevant or admissible piece of evidence. 13. The same question came to be examined bye Full Bench of Gujarat High Court in Shah Bharat Kumar v. Moti Lal Bharu Lal, AIR 1980 Guj. 51 (F.B.) . The Full Bench considered the two decisions of Madras High Court, one of Calcutta High Court and also the decisions of Allahabad and Andhra Pradesh High Court and observed; "Order 9 Rule 13 empowers a Court to make an order setting aside "adecree 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 emphasise that the power 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 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 on 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 has 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 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 cross-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 being him and he can challenge such a decision notwithstanding the previous order. However, it cannot be said 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 record the evidence. However, it cannot be said 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 record the evidence. The prejudice occasioned to the defendant would stand redressed to the defendant as soon as the witness concerned is offered for cross-examination." Further there is nothing in Section 33 of the Evidence Act which requires re-recording of the evidence even when the defendant refuses to avail of the opportunity to cross-examine or remains absent. 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." 14. The Full Bench agreed with views of Calcutta High Court that once an ex parte decree is set aside the proceedings which had taken place in the absence of the defendant would not bind him, but further observed that no question regarding admissibility of evidence is involved. The evidence which has been recorded prior to the passing.of the ex parte decree cannot be treated to have disappeared from the record. The mere fact that defendant is not bound by the proceedings does not mean that by some fiction the evidence must be regarded as not having been recorded at all. The full Bench observed:- "The legal effect of holding that the proceedings do not bind him means that he can question what had happened in his absence." "In such a situation, the defendant can, at the best, say that the evidence cannot be used against him till he is afforded an opportunity of cross- examination of the witnesses who had appeared before the passing of the ex parte decree. " 15. The Supreme Court decisions on which Shri Maloo has placed reliance, do no have direct bearing on the question involved in this revision petition. The first case of Sangram Singh (supra) relates to the scope of the jurisdiction of the Court to proceed ex parte and does not relate to the consequences which follow as a result of the setting aside of the ex parte order. The second case primarily relates to the interpretation of the phrase "good cause" and "sufficient cause" and the scope of the principle of res judicata in interlocutory applications. 16. The second case primarily relates to the interpretation of the phrase "good cause" and "sufficient cause" and the scope of the principle of res judicata in interlocutory applications. 16. Having referred to the decisions of the various High Courts, I am of the opinion that the decisions of the Madras High Court in Doraiswami's case and of Gujarat High Court (Full Bench) in Shah Bharat Kumar (supra) lay down correct principles of law. It has time and again been pronounced by the courts that rules of procedure should be so interpreted and applied so as to advance the cause of justice and not to obstruct it. Statement of a party or a witness before the Court can become evidence only if -such party or witness is made available to the opposite side for cross examination. By cross-examining a witness, a party can elucidate truth and demolish the case of the party on whose behalf the witness has appeared. A statement made before the court in ex parte proceedings does not completely disappear from the record of the case merely because subsequently it is discovered by the court that order for ex pate proceedings/decree could not have been made. The effect of setting aside of the ex parte order or decree is that the party against whom the proceedings have been taken ex parte is relegated to the position which was obtaining prior to the passing of the ex parte order or decree. Before such ex parte order or decree was passed, such party had right of cross-examination of the witnesses of the opposite side. Therefore, the witnesses who were examined in its absence will have to be made available for cross- examination. Once the witnesses are made available for cross-examination, such party's rights are fully vindicated. Therefore, there is little justification for taking a view that with the setting aside of the ex parte order/decree, the entire proceedings in the case must commence afresh in totality from the stage of ex parte order or decree. 17. The order passed by the learned Munsiff though it is not elaborate and well reasoned, in my opinion, cannot be termed as perverse or without jurisdiction. It is not a case in which it can be held that the learned Munsiff has committed any illegality or material irregularity in exercise of his jurisdiction. 17. The order passed by the learned Munsiff though it is not elaborate and well reasoned, in my opinion, cannot be termed as perverse or without jurisdiction. It is not a case in which it can be held that the learned Munsiff has committed any illegality or material irregularity in exercise of his jurisdiction. Above all, the interest of the defendant has been fully safeguarded, in as much as, he has been given an opportunity of cross-examining the witnesses who had appeared after the passing of the order for ex parte proceedings. Thus, no manifest injustice has resulted by the impugned order of the learned Munsiff. 18. There is no justification for interference with order passed by the learned Munsiff. The revision petition fails and it is hereby dismissed.Revision dismissed. *******