1. This is a defendants' appeal. The suit was for the recovery of Rs. 26,738/-. There were several defendants. The present appellants were defendants Nos. 3 and 4. We are not concerned at present with the other defendants. The appellants were duly served with summonses. They had filed their written statements. Issues had been framed on the basis of their written statements and the ease came up for hearing on the 25th of August, 1949. On that date the appellants were absent and their counsel stated that he had no instructions. The case was, therefore directed to proceed ex parte againt the appellants. The plaintiff examined one witness in support of his case against these appellants. The suit was decreed ex parte against them. Subsequently the appellants applied for the setting aside of the ex parte decree against them. As they showed sufficient cause for absence on the 25th of August 1949 the date on which the ex parte decree had been passed, their request was accepted, the ex parte decree against them was set aside and the suit was restored to its original number so far as they were concerned. The case could not be taken up for some time for various reasons. Ultimately 4th of July, 1951, was fixed as the date for final hearing. On that date the appellants were again absent. An application for adjournment was made on their behalf by their counsel and in support of it a telegram received from the appellants about the death of their daughter-in-law was relied upon. The plaintiff opposed the application for adjournment on the ground that the daughter-in-law had died much earlier. It was contended that the application for adjournment had been made only to harass the plaintiff. An affidavit was also filed by the plaintiff about the date of the daughter-in-law's death. The Court rejected the application lor adjournment. The appellants' counsel then state.d that he had no further instructions. The plainiff was then required to prove bis claim and to produce evidence in support of it. The plaintiff's counsel stated that he relied upon the evidence already recorded, i.e., the statement of the witness who had been examined on the 25th of August. 1949, and that he did not wish to produce any further evidence. Relying on the evidence already recorded, the learned Judge decreed the suit against the appellants. He purported to pass a decree on merits and not an ex parte decree. That decree is being challenged by the appellants in the present appeal.
2. Two contentions have been pressed in support of the appeal. The first is that an adjournment should have been allowed. The second is that, in any case, there was no material before the learned Civil Judge on the basis of which he could decree the suit against the appellants on merits. The argument is that the only evidence on the record was the statement of the plaintiff's withess recorded on the 25th of August, 1949, and that evidence could not be utilised against the appellants.
3. The first ground cannot be accepted for the simple reason that there are no materials before us to show that the appellants had sufficient cause for absence on the 4th of July, 1951, when the case was called up. The telegram that was received only stated that the daughter-in-law had died but it did not mention even the date of thef death. On the other hand, there was the affidavit of the plaintiff than she had died three months earlier. On that material, we think, the learned Civil Judge had no option but to refuse the adjournment prayed for.
4. The second contention, however, appears to be well founded. It is conceded that the only evidence that was there in support of the plaintiff's claim and on the basis of which the suit has been decreed On merits against the appellants was the statement of a witness Gobardhan who was examined on the 25th of August, 1949, after the suit had been directed to proceed in the absence of the present appellants.
5. When the earlier ex parte decree against the appellants was set aside and the suit was restored the Court impliedly held that the appellants had sufficient cause for absence on the 25th of August, 1949. That being so any evidence produced in their absence could not be utilised against them. The statement of Gobardhan having been recorded in their absence could not in the circumstances be made the basis of the decree now under appeal.
6. The contention of the, appellants receives support from a decision of the Calcutta High Court reported in Phani Bhusan, Mukherjce v. Phani Bhusan Mukherjee, AIR 1957 Gal 170. In that case also at one stage an ex parte decree had been passed against the defendants on the basis of evidence produced in their absence. Subsequently the ex parte decrees was set aside and when the case came up for final hearing again the defendants were not present. Relying on the evidence recorded earlier the suit was again decreed. One of the grounds given for setting aside the latter decree was that it was based on inadmissible material. It was observed in that connection :
'But in the case before me there were no materials upon which the Court could pass an ex parte decree in favour of the plaintiff. Mr. Das Gupta has argued that the materials which were before the Court at the time of passing an ex parte decree on the 29th May, 1952, could also be utilised for the purpose of passing another ex parte decrce on the 2nd December, 1954. I am also unable to accept this argument as correct. I have already staled that the ex parte decree was set aside by an order dated the 3rd March, 1953. The effect of the order setting aside the ex parte decree is that all proceedings subsequent to the stage of the defendant's non-appearance on the 29th May, .1952 would no longer bind him. In other words, as the defendant's non-appearance was condoned by the setting aside of the ex parte decree, the evidence which was recorded in his absence will not also be admissible against him. For these reasons I am unable to hold that the Court had any material upon which it could have passed an ex parte decree on; the 2nd December, 1954.'
7. The principle laid down, if we may say so with respect, appears to be unexceptionable. A decree can be passed against the defendant only on admissible matietial and any evidence produced in his absence cannot be utilised against him and treated as admissible material. The earlier ex parte decree against the appeallants having been set aside they became entitled to be relegated back to the stage at which they were absent and could insist that everything which had been done in their absence should be done again in their presence. The evidence of Gobardhan had been recorded in itheir absence. They had no opportunity of cross-examining the witness. The reason for that absence having been, found to be sufficient they could say that if the evidence of Gobardhan was to be relied upon against them, Gobardhan should be examined again. On the basis of the evidence recorded in Itheir absence, the decree in question could not, therefore, be passed against them.
8. The appellants are, therefore, entitled to have the decree set aside. They urged that if there is no material to support the decree the suit of the plaintiffs must be dismissed. That will, however, in our opinion, be extremely unfair. The proper course which we think should be followed in the present case is that the decree under appeal must be set aside and the case must be sent back to the learned Civil Judge for being decided on merits so far as the appellants are concerned.
9. The appeal is therefore accepted. The decree against the appellants is set aside and the case is sent back to the learned Civil Judge for its being decided on merits so far as the appellants are concerned. In the circumstances of the case, there Will be no order as to costs.