Research › Search › Judgment

Kerala High Court · body

2010 DIGILAW 906 (KER)

Rajendra Prasad v. Radha T. K, Radha Mandiram

2010-11-18

THOMAS P.JOSEPH

body2010
JUDGMENT : Thomas P. Joseph, J. Defendant No. 1 in O.S. No. 318 of 2010 of the court of learned Munsiff, Changanassery is the petitioner before me challenging Ext.P7, order dated November 9, 2010 on I.A. No. 1822 of 2010. By the impugned order request of petitioner to cross examine respondent No. 1 regarding genuineness of Ext.P2, document at the interlocutory stage was turned down. It is contended by learned counsel that since the court is authorised under Rule 1 of Order 39 of the Code of Civil Procedure (for short, "the Code") to take evidence by affidavit or otherwise in support of the application for injunction and in the light of Rule 2 of Order 19 of the Code petitioner is entitled to cross examine respondent No.1 regarding genuineness of the document which is being pressed into service against petitioner and at any rate, learned Munsiff ought to have exercised the discretion in favour of petitioner. Learned counsel for respondent No.1 opposed the petition contending that petitioner has no right to cross examine and that there is no reason to interfere with the order passed by learned Munsiff. 2. Dispute is concerning the right to sell 'vazhipadu' materials outside the compound of Sree Subramanya Swami temple, Changanacherry referred in the plaint. Respondent No.1 stated that she was given the right to sell such articles inside the temple compound but, petitioner is selling the same articles outside the compound and that affected her business. She, therefore filed the suit for injunction. She also filed an application for temporary injunction in the same line. She produced Ext.P2, document in support of her plea. Petitioner while objecting to the application of injunction contended that Ext.P2, document is not genuine and filed I.A.No.1822 of 2010 to summon respondent No.1 for cross examination on the genuineness of the document. Learned Munsiff dismissed the application observing that for considering the application for temporary injunction it is not necessary to decide on execution of the document which can be decided at the trial. 3. It is not disputed and Rule 1 of Order 39 of the Code also says that the court is empowered to take evidence on an application for injunction by affidavit or otherwise. Rule 1 of Order 19 states about power of the court to order any point to be proved by affidavit. 3. It is not disputed and Rule 1 of Order 39 of the Code also says that the court is empowered to take evidence on an application for injunction by affidavit or otherwise. Rule 1 of Order 19 states about power of the court to order any point to be proved by affidavit. Under that provision the court may at any time for sufficient reason order that any point be proved by affidavit or that affidavit of any witness may be read at the hearing, on such conditions as the court thinks reasonable. The proviso says 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. Rule 2 of Order 19 of the Code says that upon any application evidence may be given by affidavit, but the court may, at the instance of either party, order the attendance of the deponent for cross examination. Affidavit referred to in Rule 1 of Order 19 of the Code is for substantive applications and such affidavits cannot be read in evidence if the opposite party expresses the desire to cross-examine the deponent. But, affidavit referred to in Rule 2 of Order 19 of the Code refers to interlocutory applications where the court is empowered to take evidence by affidavit. Affidavits in support of interlocutory applications falling under Rule 2 of Order 19 can be read in evidence even if the opposite party desired to cross examine the deponent. If the opposite party desires he can apply for cross-examination of the deponent but he has no right of cross 'examination'. The court may, on the facts and circumstances of the case permit cross examination of the deponent. The same is he view taken in Kanbi Mavuji Khimji and Anr. v. Kanbi Manjibhai Abjibhai and Ors., AIR 1968 Guj. 198 . The court may, on the facts and circumstances of the case permit cross examination of the deponent. The same is he view taken in Kanbi Mavuji Khimji and Anr. v. Kanbi Manjibhai Abjibhai and Ors., AIR 1968 Guj. 198 . True, it was held that where the court is expressly permitted to decide interlocutory matters on affidavit, Rules 1 and 2 of Order 19 of the Code cannot be pressed into service and that conditions and circumstances prescribed under Rules 1 and 2 of Order 19 will be attached only if the court exercises the general power vested in it (directing production of any particular fact to be proved by affidavit). In that view of the matter petitioner could not as of right seek cross examination of respondent No. 1 on the affidavit she has filed in support of the interlocutory application. 4. Learned counsel argued that the letter dated 30-04-2010 (said to be) sent by respondent No. 1 to respondent No. 2 would itself show that Ext.P2, document is not genuine. That is a matter which petitioner has to urge before learned Munsiff as provided under law at the appropriate stage. Having regard to the facts and circumstances of the case I am not persuaded to think that cross examination of respondent No. 1 on the affidavit she has filed in support of the application for injunction is required. Learned Munsiff observed that genuineness of document can be decided at the trial side. I do not find reason to interfere with the impugned order. Petition is dismissed.