J. M. SHETH, J. ( 1 ) THIS is a revision petition filed by the original plaintiffs under sec. 115 of the Civil Procedure Code against the order passed by the learned Civil Judge Senior Division Kutch-Bhuj Shri R. H. Mavani in a Civil Suit No. 104 of 1967 filed by the plaintiffs-petitioners against the opponents-defendants refusing the request made by the petitioners to order the attendance of the original defendants Nos. 3 and 7 who had filed affidavits for cross-examination. ( 2 ) THE plaintiffs-petitioners had obtained an ad-interim injunction in the aforesaid suit filed by them. The opponents Nos. 3 and 7 filed affidavits in support of their say that it was not a case where interim injunction could be granted and ad-interim injunction granted by the Court should be vacated. In that proceeding the present petitioners filed Ex 6 requesting the Court to direct the attendance of the opponents Nos. 3 and 7 who had filed affidavits for enabling the petitioners to cross-examine them. By the impugned order that request of theirs was turned down. ( 3 ) SHRI C. T. Daru the learned Advocate appearing on behalf of the petitioners contended that the provisions of order 19 Rules 1 and 2 would control the provisions of Order 39 Rule 1 of the Civil Procedure Code. Order 39 Rule 1 of the Civil Procedure Code permits the Court to decide such interlocutory applications like the applications for interim injunctions by affidavits or otherwise. It could only mean that the Court could decide such applications on affidavits. It does not mean that the Court can ignore the provisions of Order 19 Rules 1 and 2 of the Civil Procedure Code. That power has to be exercised subject to the provisions of Order 19 Rules 1 and 2 of the Civil Procedure Code. Ordinarily the matter is to be decided on evidence. If one refers to the provisions of secs. 1 and 3 of the Evidence Act it is clear that affidavit is not evidence. Ordinarily the matter is to be decided by leading evidence meaning thereby that if it is oral evidence there must be viva-voce examination of the person who deposes to all the relevant facts. If one refers to the provisions of secs. 1 and 3 of the Evidence Act it is clear that affidavit is not evidence. Ordinarily the matter is to be decided by leading evidence meaning thereby that if it is oral evidence there must be viva-voce examination of the person who deposes to all the relevant facts. He also invited my attention to Order 18 Rule 4 of the Civil Procedure Code which reads as under:-THE evidence of the witness in attendance shall be taken orally in open Court in the presence and under the personal direction and superintendence of the Judge. He also invited my attention to sec. 30 of the Civil Procedure Code the material part of which runs as under:-SUBJECT to such conditions and limitations as may be prescribed the Court may at any time either of its own motion or on the application of any party. . . . . . order any fact to be proved by affidavit. Relying upon the provisions of this sec. 30 of the Civil Procedure Code he contended that the Court is empowered to order any fact to be proved by affidavit but that power is circumscribed. That power is to be exercised either of its own motion or on the application of any party. But that power was subject to conditions and limitations as may be prescribed. He contended that these limitations and conditions in relation to this topic were prescribed by the provisions of Order 19 Rules 1 and 2 of the Civil Procedure Code. In short his argument was that Order 39 Rule 1 of the Civil Procedure Code was controlled by the provisions of Order 19 Rules 1 and 2 of too Code. He therefore contended that the learned Civil Judge (S. D.) committed an error in refusing the request that the opponents Nos. 3 and 7 be directed to attend for cross-examination. His contention was that the learned Civil Judge (S. D.) therefore did not exercise the jurisdiction vested in him or acted with material irregularity in exercise of it. The impugned order should therefore be revised by this Court in exercise of its power under sec. 115 of the Civil Procedure Code. 3 and 7 be directed to attend for cross-examination. His contention was that the learned Civil Judge (S. D.) therefore did not exercise the jurisdiction vested in him or acted with material irregularity in exercise of it. The impugned order should therefore be revised by this Court in exercise of its power under sec. 115 of the Civil Procedure Code. ( 4 ) IN reply to these arguments the learned Advocate Shri I M. Nanavati appearing on behalf of the opponents contended that if the scheme of the Code is taken into account it would be found that the Court was expressly permitted to decide inter-locutary applications on affidavits. That would be found from Order 39 Rule 1 Order 38 Rule 1 Order 38 Rule 5 and other provisions of the Code He contended that this departure from an ordinary rule that a fact is to be proved by evidence as contemplated in the Evidence Act was made as questions involved in such interlocutory applications were not being decided with a purpose of deciding the rights of the parties in the proceedings conclusively. They are being decided for a limited purpose during the pendency of the suit. The rights of the parties were not being decided finally. Tee Legislature had therefore expressly permitted the Court to decide such applications on affidavits. Order 18 Rule 4 of the Civil Procedure Code indicated that the evidence of witnesses in attendance has to be taken orally in the open Court in the presence and under the personal direction and supervision of a Judge in a suit. Even in such substantial applications or matters if the Court feels that a particular fact or particular facts be proved by affidavits Order 19 Rule 1 of the Civil Procedure Code empowers the Court to exercise such powers. But that is to be exercised if the Court finds sufficient reason for the same and also that power is to be exercised subject to such conditions as the Court thinks reasonable. In short his contention was that under the provisions of Order 19 Rule 1 the Court has been empowered to depart from an ordinary rule that a fact is to be proved by evidence as contemplated under secs 1 and 3 of the Evidence Act. But that power is subject to the conditions referred to therein. In short his contention was that under the provisions of Order 19 Rule 1 the Court has been empowered to depart from an ordinary rule that a fact is to be proved by evidence as contemplated under secs 1 and 3 of the Evidence Act. But that power is subject to the conditions referred to therein. Proviso has been added to it to safeguard the interest of the parties to the proceedings when such departure from an ordinary rule is to be made. ( 5 ) SEC. 2 of the Civil Procedure Code relates to Definitions. Subsec. (1) Of it states that in this Act unless there is anything repugnant in the subject or context -Code includes rules. Sub-sec. (16) of it states that prescribed means prescribed by rules. In sub-sec (18) of it is stated that rules means rules and forms contained in the First Schedule or made under sec. 122 or sec. 125. Taking into consideration these definitions it is clear that the rules of Order 39 and Order 19 which fall in the First Schedule; would be included within the meaning of the word Code. These rules will therefore also form a part of the Code wherein substantive sections fall. Sec. 30 of the Code which is material for our purposes runs as under:-SUBJECT to such conditions and limitations as may be prescribed the Court may at any time either of its own motion or on the application of any party. . . . . . . . order any fact to be proved by affidavit. As seen earlier prescribed means prescribed by rules and the rules that find place in the First Schedule will be the rules referred to. In my opinion this sec. 30 deals with general power given to the Court empowering the Court either of its own motion or on the application of any party to order any fact to be proved by affidavit. If this general power given to the Court is to be exercised by the Court by ordering any fact to be proved by affidavit that power is subject to such conditions and limitations as may be prescribed. Those conditions and limitations have been prescribed in Order 19 of the Code which deals with a topic on affidavit. If we read this sec. Those conditions and limitations have been prescribed in Order 19 of the Code which deals with a topic on affidavit. If we read this sec. 30 and the relevant provisions of Order 19 Rules 1 and 2 and bear in mind the aforesaid definitions it appears to me that only in cases where the Court exercises general power of ordering the facts to be proved by affidavit either of its own motion or on the application of any party that power is to be exercised subject to the conditions and limitations imposed upon it under Order 19 Rules 1 and 2. On taking into consideration the scheme of the Act we find several provisions in the Code especially in the First Schedule where the Court has been expressly permitted to decide certain matters on affidavit. One of such provisions finds place in Order 39 Rule 1. The material part of it runs as under:-1 Wherein any suit it is proved by affidavit or otherwise:- (a) that any property in dispute in a suit is in danger of being wasted damaged or alienated by any party to the suit or wrongfully sold in execution of a decree or (b) that the defendant threatens or intends to remove or dispose of his property with a view to defraud his creditorsthe Court may by order grant a temporary injunction to restrain such act or make such other order for purpose of staying and preventing the wasting damaging alienation sale removal or disposition of the property as the Court thinks fit until the disposal of the suit or until further orders. A perusal of the wordings of this Rule 1 of Order 39 clearly indicates that in such interlocutory applications for interim injunctions the Court has been expressly permitted by the Legislature itself to decide such applications on affidavits. If the Court on affidavit finds that any property in dispute in a suit is in danger of being wasted damaged or alienated by any party to the suit or being wrongfully sold in execution of a decree the Court is entitled to grant such ad-interim injunctions. Rule 4 of that Order states that:-ANY order for an injunction may be discharged or varied or set side by the Court on application made thereto by any party dissatisfied with such order. Rule 4 of that Order states that:-ANY order for an injunction may be discharged or varied or set side by the Court on application made thereto by any party dissatisfied with such order. We do not find any provision in Order 39 whereby the Court is expressly permitted to decide such matters by affidavit that those powers are to be exercised subject to the conditions and limitations prescribed. If really the Legislature intended that even though the Court was expressly permitted by the Legislature itself to decide such matters on affidavits that power was to be exercised subject to the conditions and limitations prescribed those wordings would have ordinarily found place in this Order 39 as it has been done in sec. 30 of the Civil Procedure Code. As seen earlier rules that fall in the First Schedule form a part of the Code. This is a special power given to the Court whereby it has been empowered to decide such interlocutory applications on affidavits. As stated earlier sec. 30 deals only with general power given to the Court and when the Court exercises that power that power has got to be exercised by it subject to conditions and limitations that be prescribed and those conditions and limitations prescribed in the Order 19 which relates to affidavits. If we now read the relevant provisions of Order 19 the same intention of the Legislature could be gathered therefrom. Order 19 Rule 1 runs as under:-1 ANY Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit or that the affidavit of any witness may be read at the hearing on such conditions as the Court thinks reasonable. This Rule 1 is a sort of an exception to the provisions that find place in Order 18 of the Code. Ordinarily evidence is to be led. If it is a case of oral evidence witnesses have to be examined in the open Court. If documentary evidence is to be led documents have to be filed and they have to be proved. Ordinarily that is what is contemplated by reference to evidence. That also appears to be the Position if we refer to secs. 1 and 3 of the Evidence Act. This Rule 1 of Order 19 of the Civil Procedure Code empowers the Court to depart from that ordinary rule. Ordinarily that is what is contemplated by reference to evidence. That also appears to be the Position if we refer to secs. 1 and 3 of the Evidence Act. This Rule 1 of Order 19 of the Civil Procedure Code empowers the Court to depart from that ordinary rule. But when the Court exercises that power it can do it only for sufficient reasons. Even the affidavit of any witness can be read at the time of hearing but it is to be on conditions which the Court may impose and conditions imposed would be the conditions which the Court thinks reasonable to safeguard the interests of the parties to the proceedings. When this departure from an ordinary rule is to be made a proviso added to it will have to be taken into account. It runs as under:-PROVIDED that where it appears to the Court that either party bona fide desires the production of a witness for cross examination and that such witness can be produced an order shall not be made authorising the evidence of such witness to be given by affidavit. By this proviso the powers of the Court are further circumscribed. If either party bona fide desires the production of a witness for cross-examination and such witness can be produced ordinarily in such a case the Court should not make an order of authorising the evidence of such witness to be given by affidavit. This rule will apply when the Court in exercise of its general power directs a particular fact to be proved by affidavit. Rule 2 of the Order 19 of the Code runs as under:- (I) Upon any application evidence may be given by affidavit but the Court may at the instance of either party order the attendance for cross-examination of the deponent. (ii) Such attendance shall be in Court unless the deponent is exempted from personal appearance In Court or the Court otherwise directs. This Rule gives a right to the parties also to apply to the Court that evidence may be given by affidavit. The Court can grant such a permission and accept the request made by either party. But that power is also circumscribed. Either party can request the Court to order the attendance for cross-examination of the deponent. That will sufficiently safeguard the interests of the other side. The Court can grant such a permission and accept the request made by either party. But that power is also circumscribed. Either party can request the Court to order the attendance for cross-examination of the deponent. That will sufficiently safeguard the interests of the other side. On a perusal of these two rules it is quite evident that even where evidence is required to be given as contemplated under secs. 1 and 3 of the Indian Evidence Act i. e. in case of substantial applications or suits the Court has been empowered if sufficient reason is shown to order that a particular fact may be proved by affidavit. But in that case if it appears to the Court that either party bona fide desires a production of a witness for cross-examination and such witness can be produced an order should not be made authorising the evidence of such witness to be given by affidavit. Similarly on application of the party evidence can be given by affidavit. But in that case also either side can move the Court to order the attendance of such deponents for cross-examination. It is therefore evident that these limitations and conditions will govern the matter if the Court exercises the power in view of these provisions of Order 19 or in view of its power under sec. 30 of the Code. I am of opinion that these conditions and limitations prescribed will be attached only if the Court exercises this general power vested in it. But as in a case like the present case wherein special power is vested in the Court to decide such inter-locutary applications on affidavit and that power has been expressly given to it these conditions and limitations will not be attached to the exercise of that power. Either party therefore cannot lay any claim or urge that it has got a right to cross-examine such deponents. In short the provisions of Order 39 Rule 1 or similar provisions found in several other orders where the Court is expressly permitted to decide such inter-locutary matters on affidavit the provisions of Order 19 Rules 1 and 2 cannot be pressed into service. The learned Advocate Mr. Daru contended that the Court derived this power to decide matters by affidavit only from sec. 30 of the Civil Procedure Code. The learned Advocate Mr. Daru contended that the Court derived this power to decide matters by affidavit only from sec. 30 of the Civil Procedure Code. In my opinion that power which the Court derives is a general power and if that power is to be exercised it is subject to the limitations and conditions prescribed. But when the Court has been given special power to decide certain inter-locutary matters by affidavit that power is unfettered. It is not subject to limitations and conditions prescribed. If really the Legislature intended to place any conditions and limitations in exercise of that special power also the Legislature could have used those words in that order like the Order 39 Rule 1 of the Code. The Legislature has in my opinion wisely not done it. She objects underlying it may be that the rights of the parties in such inter-locutary applications are net being decided finally. The parties are not going to suffer as only for certain limited purposes these interlocutory applications were being decided and the rights of the parties were not being finally decided. That appears to be the reason why no such conditions and limitations have been prescribed in exercise of that special power. I am of opinion that the arguments advanced by the learned Advocate Mr. Daru are therefore not well founded. ( 6 ) MR. Daru invited my attention to a case M/s. Shyamsunder Kumar v. Bharat Oil Mills (Nagpur) A. I. R. 1964 Bombay 38. relevant observations made therein are as under:-It was a case where the question of recording of evidence had come. The stage of recording of evidence had reached and in that context these observations have been made. It was not a case where matter was expressly permitted to be decided on affidavit. That decision has therefore no bearing to the facts of the present case. ( 7 ) THE learned Advocate Mr. Nanavati appearing on behalf of the opponents invited my attention to a case B. N. Munibasappa v. G. D. Swamigal A. I. R. 1959 Mysore 139. That decision has therefore no bearing to the facts of the present case. ( 7 ) THE learned Advocate Mr. Nanavati appearing on behalf of the opponents invited my attention to a case B. N. Munibasappa v. G. D. Swamigal A. I. R. 1959 Mysore 139. In para 17 of the judgment at page 142 the following instructive observations have been made:-IN my opinion while it would not be correct to say that an affidavit cannot be regarded as evidence even though it is properly produced under Rule 1 or 2 of Order 19 of the Civil Procedure Code it is clear that an affidavit can never take the place of evidence recorded in the ordinary way unless the case is one to which the provisions of those rules apply or the affidavit relates to a matter like an application for an attachment or an injunction in regard to which the Code itself has made express provision. In para 24 at page 143 the following observations have been made:-IF one examines the provisions of the Code of Civil Procedure it is seen that it refers to specific instances where the Court is expressly permitted to act upon of affidavits Those are cases like those referred to in Rule 19 of Orders Rules 8 to 20 of Order 11. Rule 3 of Order 32 Rules 1 and 5 of Order 38 and Rule 1 of Order 39 of the Code of Civil Procedure. These are cases in which the production of an affidavit without more would enable the Court to act under the provisions I have referred to. . . . . . . . . ORDINARILY except in such cases it is obvious that evidence has to he recorded in the manner specified in Rule 4 of Order 18 unless an order to the contrary is properly made under Rule 1 of Order 19 of the Code of Civil Procedure. As I have mentioned in order to justify an order to that effect under that Rule there must be sufficient reason. It is clear that it would be a sufficient reason to make an order of that kind in uncontested proceedings like those which were the subject-matter of the decisions in A. I. R. 1954 Nag. 260 (Kanalyalal S. Dadlani v. Meghraj Ramkaranji) and in A. I. R. 1942 Oudh 350 (Shib Sahai v. Tika ). . . . . It is clear that it would be a sufficient reason to make an order of that kind in uncontested proceedings like those which were the subject-matter of the decisions in A. I. R. 1954 Nag. 260 (Kanalyalal S. Dadlani v. Meghraj Ramkaranji) and in A. I. R. 1942 Oudh 350 (Shib Sahai v. Tika ). . . . . That would also be the position where the opposite party does not dispute or is not interested in disputing the facts sought to be proved by affidavit. That is the practice which is also being followed in uncontested probate proceedings and other uncontested proceedings under the Indian Succession Act. But if a case is not a case of that kind and the facts presented by a case which are disputed have to be proved it may perhaps be possible in a very exceptional case to direct a particular fact or facts in such a case to be proved by affidavit. It is true that in that case the question that is posed before me was not directly agitated but that decision also indicates that in cases where certain specific matters are expressly permitted to be decided by affidavits nothing more would be required. In the cases where the procedure prescribed in Order 18 of the Civil Procedure Code is to be followed an exception may be made. That exception finds place in Order 19 Rules 1 and 2 of the Civil Procedure Code and if that exception is to be made that power is to be exercised subject to the conditions and limitations laid therein. I am therefore of opinion that the learned trial Judge was quite justified in holding that in a case like the present case the plaintiff could not insist upon compelling the deponents attendance for cross-examination. As the Court was expressly permitted to decide such matters on affidavits the Court was justified in not ordering the attendance of opponents Nos. 3 and 7 for cross-examination. It cannot therefore be said that the Court in exercise of its jurisdiction has committed any illegality or material irregularity. The petition therefore fails. ( 8 ) THE petition is dismissed with costs. Rule is discharged. Ad interim stay granted stands vacated. Petition dismissed .