Zile Singh vs Santo and Others

S.P. Goyal, J.—Santo, respondent No. 1, filed that this suit for possession by way of pre-emption of land measuring 1 kanals, 19 Marlas sold by Mangat Ram respondent to the appellant and respondents Nos. 2 to 5 for Rs. 32,000/- vide sale-deed, Exhibit D-2, dated June (sic), 1975. The suit was initially contested by all the vendees except Zile Singh appellant against whom ex-parte proceedings were taken. After the conclusion of the evidence of both the parties, when the suit was fixed for arguments, Zile Singh appellant filed an application on September 20, 1978 for setting aside ex parte proceedings which on the concession of the plaintiff were set aside vide order dated October 20, 1978. After the filing of the written statement by Zile Singh and the replication by the plaintiff the suit as fixed for December 1, 1978 for evidence of the parties and on that date the counsel for the plaintiff tendered in evidence a copy of the pedigree-table and closed his evidence of the defendants but no evidence having been led on their behalf the case was fixed for January 9, 1979 for arguments. At the time of the arguments when the learned counsel for the plaintiff tried to refer to the evidence which was recorded in the absence of Zile Singh, his counsel took exception to it and argued that any evidence recorded in the absence of his client could not be read against him. Faced with this situation the plaintiff moved an application on January 10, 1079 for permission to re-examine the witnesses alleging that the plaintiff had conceded for setting aside the ex parte proceedings on the clear understanding that the evidence already led would be read as evidence against Zile Singh also but this fact was not specifically recorded in the statements of the parties. This application was opposed by the vendee-defendants and the averments made therein controverted. The learned Sub-Judge rejected the application vide order dated March 29, 1979 and dismissed the suit against all the vendees with the finding that there was no evidence on the basis of which the right of pre-emption was claimed.

On appeal, the learned Additional District Judge relying on Kumara Pillai Vs. Thomas, , held that the evidence recorded in the absence Zile Singh could be read as evidence against him and it was for him to recall the witnesses if he so desired for cross-examination. Consequently, the judgment of the trial Court was reversed and the suit decreed vide judgment dated May 3, 1981. Aggrieved thereby, Zile Singh appellant has come up in this second appeal.

The view taken by the learned Additional District Judge on the basis of Kumara Pillai''s case (Supra) does not appear to be sound one in view of the latter judgment of the Supreme Court in Arjun Singh Vs. Mohindra Kumar and Others, which is evident from the following observation:-

... ... ... On the terms of Order 9, Rule 7, if the defendant appears on such adjourned date and satisfies the Court by showing good cause for his non-appearance on the previous day or days he might have the earlier proceedings recalled ''set the clock back'' and have the suit heard in his presence,... ... ...

A similar view was taken by Full Bench of the Andhra Pradesh High Court in Aziz Ahmad Khan v. I.A. Patel AIR 1979 A.P. 1, and it was held that on the setting aside of the ex-parte decree all proceedings which took place subsequent to the stage of the non-appearance of the defendant leading to the decree are set aside and they are not binding on the defendant. The learned counsel for the respondents, however, relied on a Full Bench decision of the Gujrat High Court in Shah Bharatkumar Premchand Vs. Motilal and Bharulal, , but that is no help to him because even according to this decision where an ex-parte decree is set aside it would be unnecessary to record the evidence of a witness recorded before setting aside of the decree provided the said witness is offered for cross-examination after the exparte decree is set aside. The correct position on setting aside the exparte order, therefore, would be that the defendant shall be entitled to the re-hearing of the suit in his presence denovo from the stage when he was proceeded ex-parte. However, it may not be necessary to re examine the witnesses and at would suffice if they are offered for cross-examination by the said defendant as held by the Gujarat High Court in Shah Bharath Kumar Premchand''s case (supra) In the present case, the witnesses examined prior to the setting aside of the exparte proceedings against the appellant were neither re-examined nor recalled for cross-examination and their statements as such could not be read in evidence against the appellants

The learned counsel for the respondents thin urged that the application of the plaintiff dated January, 10, 1979 was wrongly rejected by the trial Court. In the appeal, this matter was agitated and the lower Appellate Court was of the view that the trial Court should have allowed the plaintiff to recall his witnesses but it did not choose to do so because the appeal was allowed on another ground which has already been discussed. As already noticed above, the plaintiff filed the application for permission to recall his witnesses on the ground that there was a clear understanding between the parties that the evidence already recorded would he read in evidence against the appellant but that matter was not mentioned in the statements of the parties recorded by the court. The trial Court rejected the application on two grounds namely, that the averments of the plaintiff is not borne out from the record and that the right of pre emption being a piratical right discretion could not be exercised in favour of the pre-emptor. Both these grounds in my view, are not sustainable. The question of there being anything on the record about the said understanding cannot arise because if it had been so, there was no need for an application to recall the witnesses The version of the plaintiff, however, seems to be more probable from the circumstances available on the record. As stated by the plaintiff, the application for setting aside the proceedings was hopelessly barred by time and several of the joint vendees had defended the suit tooth and nail. The application by the appellant thus was a clever device to delay the proceedings in the suit and was likely to be dismissed. The plaintiff consented to the setting aside of the ex-parte proceedings to avoid further delay in the suit and he could have not done so if the evidence already recorded was not to be read against Zile Singh. Again, the plaintiff had pursued his suit very diligently and it was not expected from his counsel that he would fail to recall the witnesses unless there was an understanding between the parties as alleged So far as the other observation regarding the piratical nature of the pre-emption right is concerned, I fail to appreciate as to how the right granted by the statute can be tended as piratical in its nature. This observation was first made several decades back but inspite thereof the law of pre-emption still continues to be in force in the State of Haryana. Not only that, the Union Legislature has also provided the right of pre-emption in respect of the immovable property jointly held by the heirs of a Hindu dying intestate under the Hindu Succession Act enacted in the year 1956. The trial Court therefore, wrongly declined to excercise its discretion on wholly irrelevant consideration and its order dated March 25, 1979 is accordingly reversed.

In the result, the judgment of both the Courts below are set aside and the suit remanded to the trial Court for fresh decision after allowing the plaintiff to lead his evidence afresh and the defendants to lead his evidence, in rebuttal, if they so desire. The parties through their counsel have been directed to appear in the trial Court on December 2, 1980. No costs.