SHIVARAJ PATIL, J. ( 1 ) THIS civil revision petition is filed under Section 50 of the Karnataka Rent Control Act against the order dated 27-9-1993, passed by the iii additional judge, court of small causes, Bangalore, in h. r. c. No. 10854 of 1989 on la. No. 8. ( 2 ) THE petitioner is the tenant. The respondent is thelandlady. They will be referred to as such during the course of this order for convenience. ( 3 ) THE facts, briefly stated, are the following:the landlady filed petition seeking eviction of the tenant under Section 21 (1) (h) of the Karnataka Rent Control Act, 1961 (for short 'the act' ). When the tenant remained absent, the trial court passed the ex parte order on 22-1-1990 granting two months' time to him to vacate the schedule premises. Later, the tenant filed a civil revision petition as well as miscellaneous petition for setting aside the ex parte order. The ex parte order was set aside and the h. r. c. petition was restored. Thereafter the landlady filed la. No. Ii under Section 29 (1) and (4) of the Act, which was allowed on 28-6-1991 directing the tenant to pay the arrears of rent within one month from that date. On his failure to pay the arrears of rent, on 2-3-1993 the court ordered stopping of further proceedings and directed him to vacate the schedule premises. The said order was challenged in c. r. p. No. 373 of 1993. This court set aside the said order by allowing the said c. r. p. on 5-4-1993 directing the trial court to dispose of the main petition within five months. Thereafter, the evidence offered by both the sides were recorded and arguments were heard. During the course of the final arguments the learned counsel for the tenant raised technical objection that the evidence tendered by the landlady on 18-1-1990 before passing the ex parte order of eviction was not admissible in evidence in view of the full bench judgment of the Andhra Pradesh high court in aziz ahmed khan v la. Patel. Hence, la. No. 8 was filed by the landlady under Section 151, C. P. C. supported by an affidavit praying to treat the evidence recorded on 18-1-1990 before passing the ex parte order of eviction as evidence or in the alternative to permit her to tender fresh evidence. Patel. Hence, la. No. 8 was filed by the landlady under Section 151, C. P. C. supported by an affidavit praying to treat the evidence recorded on 18-1-1990 before passing the ex parte order of eviction as evidence or in the alternative to permit her to tender fresh evidence. After ex parte order of eviction was set aside the tenant has cross-examined the landlady with reference to her evidence recorded prior to passing the ex parte order of eviction without raising objection that the evidence of the landlady recorded prior to passing of the ex parte order of eviction was not admissible in evidence. Thus, after setting aside the ex parte order of eviction and after completion of the recording of evidence on both sides, the arguments were heard. It is at that stage the learned counsel for the tenant raised the question of admissibility of the evidence of the landlady recorded prior to passing of an ex parte order of eviction, which led to filing of la. No. 8, as stated already. The court below having considered the submissions of the learned counsel for the parties allowed la. No. 8 by the order under revision holding that the evidence of P. W. 1 recorded on 18-1-1990 as admissible in evidence under Section 33 of the Evidence Act. Hence, this revision petition. ( 4 ) SRI p. Sathyanarayana, learned counsel for the tenant (petitioner herein) urged that once an ex parte decree was set aside all proceedings from the stage of non-appearance of the defendant leading to the decree stood set aside. Hence, the evidence of the landlady recorded by the trial court in the absence of the tenant prior to setting aside the ex parte order of eviction is not legal evidence so as to attract the application of Section 33 of the Evidence Act. According to him the evidence of the landlady so recorded prior to setting aside the ex parte order is non est. Hence, the learned small cause judge committed manifest error of jurisdiction in allowing la. No. 8. ( 5 ) SRI g. l. vishwanath, learned counsel for the landlady (respondent herein) argued supporting the order under challenge. According to him the evidence of the landlady so recorded prior to setting aside the ex parte order is non est. Hence, the learned small cause judge committed manifest error of jurisdiction in allowing la. No. 8. ( 5 ) SRI g. l. vishwanath, learned counsel for the landlady (respondent herein) argued supporting the order under challenge. He submitted that the view taken by the court below having regard to the full bench judgment of the gujarat high court in shah bharatkumar premchand v M/s. Motilal and bharulal and that too on the facts and circumstances of the case on hand is perfectly valid and justified. ( 6 ) THE rival submissions made by the learned counsel for theparties pose the following question for consideration for determination:"whether all the proceedings that have taken place in the absence of the defendant by reason of setting aside the ex parte decree under order 9, Rule 13, c. p. c. , become non est and whether the testimony of the plaintiff recorded prior to setting aside the ex parte decree can be treated as evidence in view of the Provisions of Section 33 of the Evidence Act?" ( 7 ) THERE is a difference of judicial opinion in regard toaforementioned question. The high courts of Madras in doraiswami reddiar alias ella reddy and others v km. Rm. Pl palaniandi chettiar and another and gujarat in shah bharatkumar premchand v M/s. Motilal and bharulal (supra) have taken the view that the evidence recorded before setting aside the ex parte decree does not disappear. All that the other side can insist upon is the right to cross-examine the witness, if so desired and that the decision taken by the court regarding admissibility of document or otherwise would not be binding on the other side. Subject to this, re-recording of evidence is unnecessary, if the other side does not wish to cross-examine or remains absent again. The high courts of Andhra Pradesh in aziz ahmed khan v la. Patel (supra) and Allahabad in mst. Subject to this, re-recording of evidence is unnecessary, if the other side does not wish to cross-examine or remains absent again. The high courts of Andhra Pradesh in aziz ahmed khan v la. Patel (supra) and Allahabad in mst. Lakshmi devi v roongta and company and others1, have taken the contrary view that the evidence recorded before setting aside the ex parte decree becomes non est and it does not remain legal evidence at all once the ex parte decree is set aside; the evidence must be rerecorded by the court and if this is not done, any decree passed on the basis of evidence already recorded would be unsustainable. ( 8 ) IN the case on hand after the ex parte order of eviction wasset aside the learned counsel for the tenant has cross-examined the landlady with reference to her evidence recorded prior to setting aside the ex parte order without raising any objection. After recording of evidence on both sides and when the arguments were heard, at that stage objection was taken by the learned counsel for the tenant that the evidence of the landlady recorded prior to passing of the ex parte order of eviction cannot be taken as legal evidence looking to Section 33 of the Evidence Act. The learned counsel for the tenant when specifically asked did not tell me how any prejudice was caused to the tenant when cross-examination was done on the part of the tenant on all aspects of the case with reference to the evidence of the landlady recorded prior to passing of the ex parte order of eviction. In la. No. 8 the landlady sought permission to treat her evidence already recorded before passing the ex parte order as evidence in the case that too when such evidence was already subjected to cross-examination or in the alternative to permit her to tender fresh evidence. This la. Was opposed by the tenant. If the opposition of the tenant is to be upheld, it leads to anomalous position. This la. Was opposed by the tenant. If the opposition of the tenant is to be upheld, it leads to anomalous position. When specifically asked as to whether the court below should proceed to decide the case without either treating the evidence already recorded as evidence in the case or without permitting the landlady to lead fresh evidence, in other words whether the court should proceed with the case in the absence of any evidence by the landlady for no fault of her, the learned counsel for the tenant was not in a position to answer. ( 9 ) THE division bench of the Madras High Court in theaforementioned doraiswami reddiar's case has held that after setting aside the ex parte decree it does not prevent the plaintiff to treat the evidence given by him at the ex parte trial as evidence subject to the defendant's right to cross-examine the witnesses who had been examined on behalf of the plaintiff. Re-examining the witnesses already examined to repeat what they had already said will be an idle farce. 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. It is obvious, the only consideration is that no prejudice should be caused to the defendant. ( 10 ) THE full bench of the gujarat high court aforementionedin shah bharatkumar premchand's case has taken the view that order 9, Rule 13, CPC, empowers a court to set aside a decree passed ex parte against the defendant, if the court is satisfied that the summons was not duly served or the defendant was prevented by sufficient cause from appearing when the suit was called out for hearing. If the court is satisfied, it 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 of setting aside the decree is to relegate the defendant to the original position when the suit was heard ex parte 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 legal effect of the order of setting aside the decree is to relegate the defendant to the original position when the suit was heard ex parte 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. (emphasis supplied) in the same decision it is stated that there is no warrant in order 9, Rule 13, CPC, or in any provision of the Civil Procedure Code for upholding that the evidence recorded prior to setting aside the ex parte decree would become non est or non-existent in the eye of law once ex parte decree is set aside. There is nothing in Section 33 of the Evidence Act 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. The said Section does not also require re-recording of the evidence even when the defendant refuses to avail of the opportunity to cross-examine or remains absent. A portion in para 10 of the same judgment, which is considered necessary for the purpose, reads thus: "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 pubic 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 refused 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. The re-recording of evidence cannot help the defendant if he again remains absent. Nor can it help the defendant if he refused 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 recording the same evidence once again? Even god cannot help those who do not want to help themselves. Beside, 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. " (emphasis supplied) with respect, I am persuaded to follow the aforementioned full bench judgment of the gujarat high court and i do subscribe to the said view. ( 11 ) THUS, i opine and hold that setting aside the ex partedecree under order 9, Rule 13, CPC, does not mean striking off from the record the evidence already recorded. The legal effect of it is to place the defendant to the original position when the suit was heard ex parte. The manifest object is to ensure that no prejudice is caused to the defendant when the ex parte decree is set aside. When the ex parte decree is set aside he should be allowed to do all that he could do had he been present on that day on which date the suit was heard ex parte. If an opportunity if afforded to cross-examine the witnesses whose evidence was recorded in his absence and is allowed to raise the question of admissibility of a document and seek for re-exhibiting it, if a document was admitted by court, which was not admissible in evidence, by so doing, any prejudice caused to the defendant is erased. If an opportunity if afforded to cross-examine the witnesses whose evidence was recorded in his absence and is allowed to raise the question of admissibility of a document and seek for re-exhibiting it, if a document was admitted by court, which was not admissible in evidence, by so doing, any prejudice caused to the defendant is erased. No useful purpose will be served by insisting upon the examination-in-chief recorded in the absence of the defendant for being recorded once again. Order 9, Rule 13, CPC, provides for setting aside of the ex parte decree. But, there is nothing in the said provision to say either that the proceedings which have taken place in the absence of the defendant stand annulled or the evidence already recorded becomes non-existent by setting aside the ex parte decree subject to erasing of prejudice, if any, caused to the defendant, as aforesaid, that is, subject to his right to cross-examine the witness whose evidence was recorded in his absence and/or to question the admissibility of the document, if any, marked in evidence prior to setting aside the ex parte decree. ( 12 ) IN the case on hand, as already stated above, after the exparte order of eviction was set aside the landlady's evidence was tendered for cross-examination and in fact she was cross- examined on behalf of the tenant. After completing the recording of evidence tendered by both sides even the arguments were heard for final disposal and no prejudice is shown to have been caused to the tenant in this regard. ( 13 ) UNDER the circumstances, in my opinion, the court belowwas right in passing the order under revision. It was unnecessary to record the evidence (examination in-chief) of the landlady again for sake of empty formality. ( 14 ) IN the result, for the reasons stated, this revision petitionhas no merits and as such it is dismissed. --- *** --- .