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2010 DIGILAW 734 (AP)

Gampa Sai Ravi Kiran v. Bonda Rama Lakshmi

2010-08-06

GHULAM MOHAMMED

body2010
JUDGMENT GHULAM MOHAMMED, J. 1. This revision is filed against the order and decree, dated 10-02-2010, passed in I.A.No.25 of 2010 in I.A.No.915 of 2009 in O.S.No.1561 of 2009 on the file of the learned III Additional Junior Civil Judge, Visakhapatnam. 2. Brief facts are that the petitioner herein filed O.S.No.1561 of 2009 for permanent injunction restraining the respondents herein and their men from interfering with his peaceful possession and enjoyment of the plaint schedule property and for such other reliefs. Along with the said suit, he filed I.A.No.915 of 2009 under Order XXXIX Rules 1 and 2 of CPC seeking ad-interim injunction against the respondents 1 to 4 and the Court below directed both parties to maintain status quo. Later, petitioner filed the present I.A.No.25 of 2010 under Order XIX Rule 2 r/w Rule 52 CPC seeking to summon respondents 1 to 4 for the purpose of cross-examination in I.A.No.915 of 2009. Respondents filed a counter-affidavit denying all the averments of the affidavit, stating that there is no necessity to cross-examine them as it is not permissible under law. However, the Court below dismissed the said application. Aggrieved thereby, the present revision is preferred by the petitioner. 3. Learned counsel for the petitioner has drawn my attention to Order XIX Rule 2 CPC, which confers powers on the Court to call for attendance of the party so as to enable him to give an opportunity to cross examine the witness. He relied upon a decision reported in ALI BIN AIFAN ( AIR 1983 AP 114 ), wherein it was held as follows:- “I hold that the provisions of O.19 CPC are attracted to an application filed for a temporary injunction under O.39 CPC and the Court has ample power to dispose of the matters on affidavits and the Court has also ample jurisdiction to summon the deponents of the affidavits for cross-examination either suo motu where the Court desires that they should be cross-examined or at the instance of a party if the Court comes to the conclusion that the circumstances warrant the summoning of the deponents for cross-examination. In this view, the order of the lower Court directing the deponents of the affidavits to be summoned for cross-examination is correct and no interference is called for in revision.” 4. In this view, the order of the lower Court directing the deponents of the affidavits to be summoned for cross-examination is correct and no interference is called for in revision.” 4. On the other hand, learned counsel for the respondent relied upon a decision reported in SHETTY CHANDRA SHEKAR AND OTHERS v. NEETI RAMULU AND OTHERS ( 2008 (2) ALT 463 ), wherein at paragraph No.9 it is held as follows:- “A bare perusal of the provisions of Order XIX, Rule 2, would make it clear that the question of ordering attendance for cross-examination of the deponent arises only in cases where the third party affidavits are filed in support of the cases of the respective parties. The language employed in the provision would not indicate conferring of any power on the Court to call a person swearing the affidavit filed in support of the petition, for cross-examination. The affidavit filed in support of the petition shall not be treated, as an affidavit filed by way of evidence, and in this context, it would be relevant, if a reference is made to the provisions of Section 3 of the Indian Evidence Act, 1872, which defines "evidence" to mean and include all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence. In the present case, the respondents-defendants filed the petition under Order XIX, Rule 2 C.P.C. to direct the petitioner-plaintiff No. 1 to come to the Court for the purpose of cross-examination. The question of applicability of the provisions of Order XIX, Rule 2 C.P.C. would arise only in cases where an affidavit was filed in support of the cases of the respective parties i.e. either on behalf of the plaintiff or on behalf of the defendant, by way of evidence, but certainly not an affidavit filed in support of a petition. The question of applicability of the provisions of Order XIX, Rule 2 C.P.C. would arise only in cases where an affidavit was filed in support of the cases of the respective parties i.e. either on behalf of the plaintiff or on behalf of the defendant, by way of evidence, but certainly not an affidavit filed in support of a petition. Since the affidavit filed in support of a petition cannot be treated as evidence, the present petition filed by the respondents-defendants under Order XIX, Rule 2 C.P.C. seeking to summon the deponent of the affidavit filed in support of the petition for temporary injunction, was not maintainable, and more so when it is not the case of the respondents-defendants that they intended to summon petitioner-plaintiff No.1 because he had sworn to the affidavit by way of evidence to support the case of the plaintiffs. The law is well settled that when affidavits are filed in a proceeding under Order XXXIX, Rule 1 C.P.C. or any other proceedings, and in case the Court entertains a doubt, with regard to the identity of the person or persons who gave the affidavit, then it has the power and discretion to order the attendance of the deponent of the affidavit, for cross-examination so as to come to a just conclusion, to determine such petition. In such situations, the order passed by the Court below to summon the deponent for cross-examination cannot be faulted and such orders, can neither be said to be illegal nor beyond the competence of the Court”. 5. Order XIX Rule 2 CPC reads as under:- “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.” 6. The above extracted provision clearly postulates the power of Court to order the attendance for cross-examination of the deponent at the instance of either party. Therefore, the Court has the power to order the attendance for cross-examination of the deponent as it is a valuable right conferred on the parties. The power conferred on the Court is a discretionary power and it is to be exercised judiciously. Therefore, the Court has the power to order the attendance for cross-examination of the deponent as it is a valuable right conferred on the parties. The power conferred on the Court is a discretionary power and it is to be exercised judiciously. No prejudice would be caused if an opportunity is given to cross examine the witness. 7. In the circumstances, Civil Revision Petition is allowed and the impugned order is set aside. There shall be no order as to costs.