JUDGMENT 1. - The common question of law is involved in these three writ petitions, therefore, they are being decided by this common judgment. As a leading case, the facts of case of Kesari Lal v. District Judge, Baran & Others, SBCWP No. 958/1997 are being taken. 2. The petitioner moved an application under Section 6 of the Rajasthan Agriculture Indebtness Act, 1957 for determination of debt against respondent No. 3, who took Rs. 40,000/- loan and had executed as 'Shan, Joga Hundi', and agreed to pay interest at the rate of 24% per annum. The respondent No. 3 in its reply denied that he has taken loan from the petitioner and this fact also that he had executed any Hundi and alleged that that the document which has been placed by the petitioner alongwith the application is forged and the respondent No. 3 being a marginal farmer as such was a settled debtor, therefore, the application for determination of debt was not maintainable. 3. The Debt Relief Court cum Civil Judge (Sr. Division), Baran framed six Issues, but for the purpose to settle the present controversy, only Issue No. 1 is relevant which is reproduced hereunder: "Whether respondent No. 3 having taken loan of Rs. 40,000/- from the petitioner had executed the Hundi." 4. The burden to prove the said issue was put on the creditor. The creditor examined PW-1 in support of his claim on 27.11.1991, but the defendant in the claim petition, the respondent No. 3 was absent, therefore, the proceedings taken exparte against him and the same was set aside on 4.3.1992. 5. After setting aside the exparte proceedings, the petitioner further produced PW1 for examination on 21.11.1994 on which date after a short examination, the respondent No. 3 was given an opportunity to cross examine and he fully cross examined the witness on the statement recorded on 27.11.1993 & 21.11.1994. 6. The Debt Relief Court vide its order dated 6.9.1995 decided issue No. 1 against the petitioner on the ground that the statement of PW1 recorded on 21.11.1994 cannot be taken into consideration as the same does not constitute the statement to prove the Hundi and its execution and on the basis of said issue, the whole claim petition was dismissed vide order dated 6.9.1995. 7. 7. The aforesaid order was challenged by the petitioner before the District Judge, Baran by way of revision petition under Section 17 of the Act, 1957 and the same was dismissed vide. order and judgment dated 3.8.1996 upholding the view expressed by the Debt Relief Court. 8. The petitioner assailed this judgment dated 3.8.1996 passed by District Judge, Baran and order dated 6.9.1995 passed by Debt Relief Court on the ground that the orders passed by both the courts below are contrary to settled principle of law as the petitioner examined his witness as PW1 on 27.11.1991 and on the same day, the exparte proceedings has been initiated against the respondent No. 3 which was later on set aside on 4.3.1992. Thereafter, the witness PW1 was again examined on 21.11.1994 and respondent No. 3 has cross examined the witness PW1. Since the Debt Relief Court has given, the opportunity of being cross examined to the respondent No. 3, the Courts have seriously erred not to consider such witnesses for the purpose of decision which was allowed to cross examine after setting aside the exparte proceedings. 9. Learned counsel for the petitioner referred Section 33 of Evidence Act, 1872 which reads as under: 33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated. - Evidence given by a witness in a judicial proceeding or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding or in later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable: Provided that the proceeding was between the same parties or their representatives-in-interest: that the adverse party in the first proceeding had the right and and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceedings. And submits that once a witness was cross-examined on the statement recorded In his absence or during the proceedings remained exparte against the said party then the same becomes legal evidence as soon as a party is given right opportunity to cross examine the said witnesses. Further learned counsel for the petitioner referred Section 5 of the Indian Evidence Act, 1872 which is reproduced hereunder: 5. Evidence may be. given of facts in issue and relevant facts. Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others. 10. In view of Section 5, in case of proceedings during the pendency of the suit are set aside and during the said period the statement or evidence is recorded but after setting aside of the proceedings, the adversory is given a right or opportunity to cross examine the witness produced earlier then the statement or evidence recorded becomes evidence within the meaning of Section 5 of the Evidence Act. 11. In support of his contentions, learned counsel for the petitioner placed reliance on the judgment reported in AIR 1981 Allahabad 96, Malkhan Singh v. Raghubir Singh wherein Allahabad High Court has held evidence again recorded by calling witnesses after setting aside exparte decree can be relied upon. 12. In case of Shah Bharatkumar Premchand v. M/s. Motilal and Bharulal, reported in AIR 1980 Gujarat 51 . Full Bench of Gujarat High Court has held that witness whose evidence was recorded before setting aside of decree offered for cross-examination of defendant - Evidence is not required to be re-recorded. Further it was observed that it is unnecessary to re-record the evidence of a witness recorded before .the setting aside of an ex parte decree provided the said witness is offered for cross-examination after the ex pane decree is set aside. If the defendant refuses to avail of the opportunity to cross-examine the witness after the setting aside of the ex parte decree, or if the defendant again remains absent when the case comes up for hearing, the evidence recorded prior to setting aside of the ex parte decree can be treated as evidence for the purpose of passing a decree. 13. 13. In case of Nashim Alam v. Shri Mukund Singna and others, reported in 1993 (1) WLC (Raj.) 275 , this High Court considering the case of Dorai Swami v. Palaniandi, AIR 1956 Mad. 633 held that entire proceedings in, the case do not commence afresh in totality from stage of ex-parte order of decree-Witnesses examined in defendants absence will be made available for cross-examination and this fully indicates this right decree. 14. Learned counsel for the respondent No, 3 Mr. R.P. Meena submits that since both the Courts below has given the concurrent findings with regard to issue No. 1 and pass the order and judgment, therefore, the said judgment does not require any interference from this Court while exercising power under Article 226 of the Constitution of India. Learned counsel further submits that in case of Shyamlata, instead of creditor, the power of attorney (husband of creditor) was examined and his evidence cannot be treated as evidence of the creditor and in case, this Hon'ble Court is Inclined to remand the matter back, he may be allowed to submit his objections with regard to admissibility of the evidence recorded by courts below. 15. Heard rival submissions of both the parties and carefully gone through the material available on record and the judgments passed by both the courts below and also considered relevant provisions and the judgments referred by the petitioner. 16. The important question for consideration is that once the Statement of witness recorded prior to ex-parte decree can be considered for the purpose of deciding the application is relevant or not, in case, the same witness has been produced for cross examination and has been cross-examined. 17. As per Section 5 of the Indian Evidence Act, 1872, evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to. be relevant, and of no other. 18. Section 33 provides that the adverse party in the first proceeding had the right and opportunity to cross- examine. 19. In view of the above discussion, I am of the opinion that the decisions of the Allahabad High Court, Gujarat High Court (Full Bench In Shah Bharatku (supra) and this High Court in Nashim Alam (supra) lay down the correct principle of law, which are applicable to the instant case. 20. 19. In view of the above discussion, I am of the opinion that the decisions of the Allahabad High Court, Gujarat High Court (Full Bench In Shah Bharatku (supra) and this High Court in Nashim Alam (supra) lay down the correct principle of law, which are applicable to the instant case. 20. I am fully convinced with the argument advanced on behalf of the petitioner and of the view that both the.courts below had seriously erred In not considering the statement of witness which has been recorded prior to setting aside the decree and has been cross examined after setting aside the ex parte decree. In view of this fact, the writ petition is allowed. The judgments passed by the District Judge dated 3.8.1996 and judgment passed by the Debt Relief Court dated 6.9.1995 are hereby set aside. The matter is remanded back to the Debt Relief Court cum Civil Judge (Sr. Division), Baran with the direction that the evidence recorded. prior to ex parte decree and cross examined after setting aside the ex parte decree be considered on its merit. The respondents are at liberty to raise the valid and legal objections with regard to admissibility of the witnesses given by the power of attorney holder of the creditor at the time of fresh adjudication. The Debt Relief Court cum Civil Judge (SD), Baran shall consider the matter afresh and the decide the issue No. 1 afresh in view of the directions issued by this Court hereinabove on the material available to it and evidence earlier recorded. The parties are directed to appear before the Debt Relief Court cum Civil Judge (SD), Baran in the second week of January, 2003.Record may be sent back forthwith.Writ Petition Allowed - Case Remanded for Decision Afresh. *******