Research › Search › Judgment

Madras High Court · body

2007 DIGILAW 1963 (MAD)

M. Balu & Another v. Banu Mithra & Another

2007-06-29

S.ASHOK KUMAR

body2007
Judgment :- This Civil Revision Petition is filed by the defendants against the fair and decretal order dated 24. 2007 made in I.A.No.1603 of 2007 in I.A.No:980 of 2007 in O.S.No: 237 of 2007 on the file of the learned District Munsif, Alandur dismissing the application filed by the plaintiffs under Order 19 Rule 2 CPC to permit them to cross examine the deponents of the counter affidavit filed in I.A.No:980 of 2007. 2. According to the plaintiffs, the counter affidavit in I.A.No:980 of 2007 has been sworn to by the second respondent, whereas all the documents filed along with the counter affidavit relates to the dealings and affairs of the first respondent. The first respondent has not even filed any affidavit supporting or adopting the contents and the averments of the counter affidavit filed by the 2nd respondent. The 2nd respondent also stated n the counter that he is the power agent of the first respondent, whereas he has not even chosen to file any such power deed or furnished any details about the alleged power deed. The plaintiffs also disputes the very relationship of the first respondent and the Damodara Naidu and Jayalakshmi Ammal. The first respondent has already filed O.S.No:365 of 2005 against the plaintiffs in respect of the very same suit property, which was dismissed. Therefore, the 2nd respondent who is allegedly promoter and who has come into picture only recently cannot be allowed to state and cannot be relied about the 1st respondents title. The plaintiffs have perfected title over the suit property by adverse possession. 3. Learned counsel for the revision petitioners relying on the judgment of the Allahabad High court in (Abdul hameed Vs. Mujeed Ul Hasan reported in AIR 1975 All.398, contented that if affidavits are conflicting and contradictory, the deponent can be summoned for cross examination by invoking the provision of Order 19, Rule 2 of the Code of Civil Procedure. However, the learned senior counsel appearing for the respondents relying on the decision of this court in Kannammal Vs. Bagyammal, reported in 1998 (I) CTC 280 , contended that an affidavit filed in support of the petition for interim injunction does not attract Order 19, Rule 2 CPC as such affidavit was not filed as evidence and hence the petition for cross examination of deponent is not maintainable. 4. Bagyammal, reported in 1998 (I) CTC 280 , contended that an affidavit filed in support of the petition for interim injunction does not attract Order 19, Rule 2 CPC as such affidavit was not filed as evidence and hence the petition for cross examination of deponent is not maintainable. 4. In this respect, it is useful to extract the very Order XIX, Rule 1 and 2 of the Code of Civil Procedure, which run as follows:- 1. POWER TO ORDER ANY POINT TO BE PROVED BY AFFIDAVIT: Any court may at any time for sufficient reasons order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witnesses may be read at the hearing, on such conditions as the Court thinks reasonable: 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. 2. POWER TO ORDER ATTENDANCE OF DEPONENT FOR CROSS EXAMINATION - .(1) 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. .(2) Such attendance shall be in Court, unless the deponent is exempted from personal appearance in court, or the court otherwise directs. .5. Ordinarily, evidence has to be given in the manner stated in Section 3 of Evidence Act which defines the expression "Evidence", but Rule 1 of Order XIX is an exception to that section when it provides that 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 is a departure from the definition of "Evidence" as contained in Section 3 of the Evidence Act and in making that departure a safeguard has been incorporated in the proviso to this Rule 1 which says: ."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." 6. Sub Rule (1) of Rule 2 of the same Order is a further safeguard provided to the parties when evidence by affidavit is permitted by the Court instead of in the usual manner contemplated by Section 3 of the Evidence Act. This sub rule provides that 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. 7. From the above provisions it would be evident that where the court for sufficient reasons either of its own accord or on the application of a party permits any particular facts or facts to be proved by evidence instead of the witness being examined in court, it will also take into consideration the limitations and ;the safeguard contained in the proviso to Rule 1 and in the latter part of sub rule (1) of Rule 2 of Order XIX. In other words, if a party bona fide desires the production of a witness for cross examination, no order shall be made authorising the evidence of such person to be given on affidavit. Similarly, where on the application of any party, evidence has been permitted to be given on affidavit, and the other party wants that the attendance of the deponent should be secured for cross examination, the court may ordinarily grant that request. .8. As far as the present case is concerned, the plaintiff wants to cross examine the deponent, the second respondent who filed the counter affidavit in the Interlocutory Application filed by the plaintiff. The very provision of Order XIX Rule (1) says that where the court for sufficient reasons either of its own accord or on the application of a party permits any particular facts or facts to be proved by evidence instead of the witness being examined in court. The very provision of Order XIX Rule (1) says that where the court for sufficient reasons either of its own accord or on the application of a party permits any particular facts or facts to be proved by evidence instead of the witness being examined in court. In that case only as provided Order XIX Rule 2 can be invoked for cross examination of the deponent who gives such affidavit evidence. But, in the present case, there is no such direction given by the Court for sufficient reasons of its own accord, or on the application made by either parties to the proceedings directing the second respondent to give such affidavit evidence. To the Interlocutory Application filed by the plaintiff for interim injunction, the second respondent has filed his counter. Even if the contention of the plaintiff is true that the averments contained in the counter affidavit are not true, and not supported by any documentary evidence, either he could file a reply affidavit to the counter affidavit or during enquiry he may let in evidence in that regard to disprove the averments contained in the counter affidavit, but he cannot compel the opposite party to give oral evidence or make a prayer to the court to summon the opposite party for being cross examined, since the counter affidavit filed by the second respondent herein is not filed as evidence under Order XIX Rule 1 of the Code of Civil Procedure. In other words, only for the affidavit evidence given under Order XIX, Rule 1, a party to the proceedings invoke Order XIX, Rule 2, calling upon the attendance of deponent of the affidavit for cross examination. 9. The decision relied on by the learned counsel for the revision petitioner cannot also be pressed into service because in the said decision cross examination ordered by the trial court was affirmed on the ground that there was a conflicting affidavits filed by the parties. But in the absence of any separate counter affidavit being filed by the first respondent not supporting the counter affidavit filed by the second respondent, we cannot say that there is any conflicting averments warranting invocation of Order XIX Rule 2 for cross examination of the deponent. 10. For the foregoing reasons, this CRP is dismissed holding that the very Interlocutory Application filed for cross examination of the deponent of the affidavit is not maintainable. 10. For the foregoing reasons, this CRP is dismissed holding that the very Interlocutory Application filed for cross examination of the deponent of the affidavit is not maintainable. However the revision petitioner/plaintiff is at liberty either to file reply affidavit to the counter affidavit or to let in oral evidence to disprove the averments contained in the counter affidavit filed by the second respondent. 11. Consequently, connected Miscellaneous Petition is also dismissed. No costs.