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2011 DIGILAW 1170 (ALL)

Satnam Singh v. Rakesh Kumar

2011-05-05

SANJAY MISRA

body2011
Sanjay Misra, J.;- Heard Sri Nitin Kumar Agrawal learned counsel for the revisionist. 2. This is a Civil Revision filed under Section 25 of the Provincial Small Causes Act against the judgment and order dated 18.2.2011 passed in Rent Control Case no. 1 of 2009 (Rakesh Kumar Vs Satnam Singh) by the Prescribed Authority/A.C.J.M. Anoopshahar, District Bulandshahar. This revision has been filed by the defendant. 3. By the order dated 18.2.2011 the application 26-A filed by the defendant revisionist has been rejected. The application made by the revisionist was for summoning the plaintiff respondent for being cross examined on the affidavit filed by the plaintiff respondent in evidence. The court below has rejected the application on two grounds. The first is that it has not been stated in the application 26-A by the revisionist defendant as to what is the contradiction in the affidavit in evidence filed by the plaintiff respondent. Secondly it has recorded that in case the averments of the affidavit in evidence filed by the plaintiff respondent is denied by the defendant revisionist he can always file an affidavit in rebutal or denial. 4. Learned counsel for the petitioner has placed reliance on a decision of this court in the case of Ashfaq Ahmad Vs Prescribed Authority (Civil Judge), Rampur reported in 1987 All. L.J. 1452 and submits that the provisions of Order XIX Rule 2 CPC are very clear inasmuch as upon a release application evidence may be given by affidavit and the court may at the instance of either party order the attendance for cross examination of the deponent. There is no dispute regarding the power of the court to order a deponent to present himself for cross examination however in the case of Ashfaq Ahmad the court clearly found that the party had questioned the claim made by the opposite party regarding share in other two buildings named in the objection on the basis of oral gift when to meet the claim of the party the opposite party had taken a stand that the aforesaid house were orally given to someone else and opposite party no. 2 had no interest in those two houses. It was this denial made in the pleadings on affidavit which was considered by the court in Ashfaq Ahmad's case wherein it was held that the application for cross examination of the deponent was wrongly rejected. 5. 2 had no interest in those two houses. It was this denial made in the pleadings on affidavit which was considered by the court in Ashfaq Ahmad's case wherein it was held that the application for cross examination of the deponent was wrongly rejected. 5. Learned counsel has placed reliance upon a decision of the Supreme Court in the case of Standard Chartered Bank Vs Andhra Bank Financial Services Ltd. reported in (2006) 6 SC 94 and relies in paragraph 79 therein. Paragraph 79 is quoted herein- "The Special Court had laid emphasis on the failure of SCB to explain by cogent evidence how HPD got possession of the original LOA and transfer deed. In our view, this is an irrelevant issue, although according to the chargesheet, HPD had obtained possession of the original LOA and the signed transfer deed by misappropriation in conspiracy with some officers of SCB. Mr. Jethmalani also relied on the affidavit filed by HPD before the CLB in which he had stated that he had borrowed the suit bonds from SCB. In our view, that affidavit has no meaning as the deponent refused to submit himself to cross examination and the evidence given in the affidavit was not tested by cross examination. We need not delve further into the issue as we have already stated that the issue is immaterial." 6. The law laid down by the Supreme Court is quite clear from a reading of the aforesaid paragraph. The court found that there was failure to explain by cogent evidence regarding possession of the original LOA. The Supreme Court held that this was an irrelevant issue although reliance was placed on the affidavit which stated that the suit bonds were borrowed from SCB but would have no meaning as the deponent refused to submit himself to cross examination. The substance of the decision is that when cross examination of the deponent is required and he refused to submit himself to be cross examined the substance and the affidavit would not give any advantage to such a deponent. The facts of the present case are totally different. Here the application 26-A made by the revisionist has been filed as annexure to the affidavit. The application itself is quoted here under- @ Hindi @ 7. The facts of the present case are totally different. Here the application 26-A made by the revisionist has been filed as annexure to the affidavit. The application itself is quoted here under- @ Hindi @ 7. A reading of this application indicates that there is no averment of denial whatsoever or as to what is the contradiction in the affidavit in evidence filed by the plaintiff respondent. It is a general allegation claiming cross examination. The provision of Order XIX Rule 2 CPC cannot be interpreted to mean that even when there is no averment in denial or regarding an alleged contradiction in an affidavit in evidence the party would still have right to summon a deponent for cross examination. Such interpretation of the provision would not be corrected. There has to be a denial of the affidavit in evidence before the deponent can be summoned for cross examination of the averments made in an affidavit filed as evidence. 5. In so far as the judgement of the Supreme Court is concerned there is no doubt that if there is an affidavit in evidence and the court summons the deponent for cross examination but he does not put himself for cross examination such deponent can be denied benefit of the averments made in the affidavit in evidence. 9. Under such circumstances in the absence of any denial or alleged contradiction in the affidavit filed in evidence by the plaintiff respondent the court has correctly refused to allow the application for cross examination of the deponent. There is no merit in this Civil Revision nor there is any illegality or material irregularity committed by the court below. 10. The Revision is accordingly dismissed. 11. No order is passed as to costs.