- (1.) THE circumstances that give rise to this second appeal may briefly be stated thus : - Champalal brought a suit under sec. 9 of the Specific Relief Act against Illahi Bux in the court of the Munsiff, Nawa. THE suit was decreed ex parte as Illahi bux did not appear to contest. THEreafter Illahi Bux took the matter in appeal. His appeal was however, dismissed as no appeal is provided from a decree in a suit under sec 9. Illahi Bux then went up in revision before the Hon'ble Chief Justice for Rajasthan. THE Hon'ble Chief Justice was pleased to observe that as the: suit lay within the exclusive jurisdiction of a revenue court after the enforcement of the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act, 1951, the Munsiff should have tran ferred the same under sec. 6 (3) of the Act to the revenue court having jurisdiction over it. THE revision was, therefore, allowed, the ex parte decree of the Munsiff, dated 30. 3. 51 was set aside and the ease was transferred for disposal to the revenue court having jurisdiction over the matter. In compliance with this order the case went to the Assistant Collector, Nawa. It was argued before him by the appellant that the ex parte decree alone was set aside and that the ex parte order remained in tact and hence Illahi Bux was not entitled to get a hearing On behalf of Illahi Bux it was stated that the setting aside of the ex parte decree ipso facto means the termination of the ex parte order and hence the trial should commence de novo. THE learned Assistant Collector, agreed with the objection raised by the plaintiff and held that Illahi Bux could not be allowed to put in his written statement or to lead any evidence. Illahi Bux went up in appeal against this order before the learned Additional Commissioner who allowed the same held that the ex parte order itself stood set aside by the decision of the Hon'ble High Court and hence Illahi Bux was entitled to put in a written statement and to lead his evidence. Champalal has come up in appeal against this order.
(2.) WE have heard the learned counsel appearing for the parties and have examined the record as well. The main contention raised by Shri Madan Mohan Tiwari appearing for the appellant before us is that as the ex parte order was passed by the trial court on 8. 1. 51 and as the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act, 1951 came into force on 31st January, 1951, the proceedings carried out by the trial court subsequent to the enforcement of the Act have been held as without jurisdiction by the Hon'ble High Court. All the proceedings prior to it should be deemed to be valid and binding on the revenue court and as such the ex parte order, dated 8. 1. 51 should be allowed to stand in tact Reliance has also been placed in this connection upon a decision of the High Court reported in 1954 RLW 727 (Deva vs. Navla ). On behalf of the respondent it has been replied that the Hon'ble High Court having set aside the ex parte decree and having directed a further trial of the suit, it should ipso facto follow that the ex parte order, dated 8. 1. 51, stands reversed and that the suit should have a fresh trial. AIR 1951 Ajmer 78, has been cited in this connection. Order 9, Rule XIII, Note 25 of Chitley & Rao's commentary on C. P. C. at page 1934, 1950 Edition, has also been referred to before us. We have bestowed our careful consideration upon the points raised before us during the hearing of the case. The decision referred to by the learned counsel for the appellant is clearly distinguishable from the present one. In that case the learned Munsiff had recorded some evidence after 31st January, 1951 and the learned Judge who decided the case was pleased to direct that the proceedings recorded after 31st January, 1951 will stand quashed and the case shall be tried from that stage according to law and all the proceedings taken before that date will remain in tact. In the present case no such distinction has been made by the Hon'ble Chief Justice, who decided the revision. On the contrary it has been clearly laid down that the ex parte decree shall be set aside and the case "will be transferred for disposal to the revenue court having jurisdiction over the subject-matter. " It is clear that when an ex parte decree is set aside, the trial of the suit should commence de novo as against the persons in whose favour the decree was set aside and the evidence that had been takes in the ex parte proceedings should not be used against them. The ruling cited by the learned counsel for the respondent is fully applicable to the facts of the present case. The decision of the learned Additional Commissioner, therefore, is perfectly correct and calls for so interference. The appeal is hereby rejected. .;