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Madhya Pradesh High Court · body

2014 DIGILAW 1490 (MP)

Balmukund Sharma v. Bal Krishna Sharma Upadhyay

2014-11-19

SUJOY PAUL

body2014
ORDER 1. This petition filed under Article 227 of the Constitution challenges the order dated 27.11.2013 whereby the Court below has allowed the application preferred under Order 19 rules1 and 2 CPC filed by the plaintiff and permitted him to cross-examine the persons who have filed their affidavits along with reply of application filed under Order 39 rule 1 and 2 CPC. 2. The plaintiff-respondent No.1 filed a suit for declaration of title and permanent injunction against the petitioner-defendant No.1. The plaintiff stated that he is the owner of the house having half share and similarly his mother was having half share in the house. In her life time, mother Smt. Ganga Devi had executed a registered will dated 28.7.2007 in favour of the plaintiff, therefore, after the death of his mother, he became exclusive owner of the suit property. Accordingly, relief was claimed that plaintiff be declared as an exclusive owner and in possession of the suit property. In addition, a permanent injunction was sought to the effect that the defendant No.1 be restrained from making any interference in the suit property. He be restrained from alienating the same. On the aforesaid factual backdrop, plaintiff filed an application under Order 39 rules 1 and 2 r/w section 151 CPC and prayed for temporary injunction to the effect that defendants be restrained from making any interference in possession of plaintiff and they be directed to maintain status quo with respect to suit property. In support of said application, plaintiff also filed an affidavit as well as documentary evidence. Copy of will is filed as Annexure P-4. In turn, the petitioner-defendant No.1 filed his written statement and reply to the application for temporary injunction. Averments of plaint and injunction application were denied. It is stated that will has been prepared by the plaintiff. In fact, no such will was ever executed by mother in favour of the plaintiff. The said reply is Annexure P-5. In support of said reply to the application under Order 39 rules 1 and 2 CPC, petitioner filed affidavits of attesting witnesses of the will namely Rafiq Khan and Vishal Gupta. In the affidavits, it is stated by said persons that the will has not been executed in their presence. Thus, they deposed against the will. In support of said reply to the application under Order 39 rules 1 and 2 CPC, petitioner filed affidavits of attesting witnesses of the will namely Rafiq Khan and Vishal Gupta. In the affidavits, it is stated by said persons that the will has not been executed in their presence. Thus, they deposed against the will. At this stage, the plaintiff filed an application under Order 19 rule 1 CPC seeking permission to cross-examine the aforesaid attesting witnesses, who have filed affidavits contrary to reality. The present petitioner opposed the said application by filing reply. The Court below after hearing the parties on the said application, allowed the same by order dated 27.11.2013. The petitioner feeling aggrieved with said order preferred a review application under Order 47 rule 1 CPC (Annexure P-9). This application is also rejected by order dated 13.10.2014. Thus, order dated 27.11.2013 and 13.10.2014 (Annexures P-1 and P-2) are called in question in this petition. 3. Shri D.D. Bansal, learned counsel for the petitioner, drew attention of this Court on the language of Order 39 CPC. He also relied on Order 19 rules 1 and 2 CPC. By reading aforesaid provisions in juxta position, it is argued that order 39 does not contemplate any opportunity of cross-examination. Order 39 CPC makes it clear that word affidavit alone has been mentioned so that without going through the evidence, the Court may decide the matter of injunction pending disposal of the suit. In support of his contention he relied on AIR 1975 Allahabad 398 ( Abdul Hameed Khan v. Mujeed-Ul-Hasan and others), AIR 1978 Andra Pradesh 103 (Sakalabhaktula Vykunta Rao and others v. Made Appalaswamy), AIR 1994 Gauhati 52 (Rajib Barooah and another v. Hernendra Prasad Barooah and others), 1995 AIHC 360 (Bhairon Lal and another v. Chandmal and another), and AIR 2002 Allahabad 198 (Satya Prakash and another v. Ist Additional District Judge, Etah and others). 4. In nutshell, the submission of Shri Bansal is that order 39 CPC deals with aspect of injunction. Order 19 rules 1 and 2 CPC is an independent provision and cannot be applied in an injunction proceeding. He submits that court below has erred in allowing the said application of plaintiff. He further submits that basic purpose of Order 39 rules 1 and 2 is to decide the injunction application expeditiously. Order 19 rules 1 and 2 CPC is an independent provision and cannot be applied in an injunction proceeding. He submits that court below has erred in allowing the said application of plaintiff. He further submits that basic purpose of Order 39 rules 1 and 2 is to decide the injunction application expeditiously. If oral evidence is permitted to be led or crossexamination is permitted to be conducted at this stage, it will frustrate the very purpose of Order 39 rules 1 and 2. 5. Shri N.K. Gupta, learned senior counsel for the respondent, on the other hand opposed the same. He submits that in the interest of justice, the court may allow the party to cross-examine the person who has filed the affidavit. He supported the order passed by the Court below. He relied on AIR 1984 Calcutta184 (Pijush Kanti Guha v. Smt. Kinnori Mullick), 1991 MPLJ 32 (Harsh Wood Products Pvt. Ltd. v. Sant Prakash Gupta), and AIR 1991 Rajasthan 119 (Chotu Khan v. Abdul Karim). 6. I have heard learned counsel for the parties at great length and perused the record. 7. Shri Bansal placed reliance on judgment of Abdul Hameed Khan (supra). In the said judgment, the Allahabad High Court relied on judgment of Gujrat High Court reported in AIR 1968 Guj. 198 (Mavji Khimji v. Manjibhai Abjibhai). In Abhul Hameed Khan the High Court opined that it has not been ruled in Mavji Khimji that even in an interlocutory matter like the one under Order 39 rule 1 CPC, the Court has no power to summon and cross-examine the deponent if it thinks it necessary to do so in the interests of justice. All that has been laid down in Mavji Khimji is that the power to decide the interlocutory matter under Order 39 rule 1 is specifically conferred on the Court independently of Order 19 rule 1 CPC. It is further recorded in Abdul Hameed Khan that in Order 39 rules 1 and 2 CPC there is no bar to the Court to summon the witness for cross-examination if it thinks it necessary to do so in the interest of justice. This judgment does not help the petitioner in any manner. 8. It is further recorded in Abdul Hameed Khan that in Order 39 rules 1 and 2 CPC there is no bar to the Court to summon the witness for cross-examination if it thinks it necessary to do so in the interest of justice. This judgment does not help the petitioner in any manner. 8. In Satya Prakash (supra), Allahabad High Court opined that while deciding the application preferred under Order 39 rules 1 and 2 CPC, the court is not subjected to the provision of Order 19 rules 1 and 2 CPC. The Gauhati High Court in Rajib Barooah (supra), opined that purpose of Order 39 is to ensure that the injunction matter be disposed of as quickly as possible. Sole object is that said injunction matter be disposed of without going through full length of procedure of examination and cross-examination of witness because if such lengthy procedure is adopted, the very purpose and object of granting injunction will be frustrated. It is further opined that word affidavit mentioned in Order 39 makes it clear that court has to proceed without going through the evidence. In Sakalabhaktula (supra), Andra Pradesh High Court opined that while dealing with an application under Order 39 rules 1 and 2 CPC, the Court is not subject to limitations and conditions prescribed by the provisions of rules 1 and 2 of Order19. The same view is taken by the Rajasthan High Court in Bhairon Lal (supra). 9. It is seen that M.P. High Court had an occasion to deal with this aspect. In Rajendra Prasad v. Bhagwandas and others, reported in 1976 MPWN 103, this Court opined that though recording of evidence is not prohibited, yet it should be rarely resorted to in exceptional circumstances. This finding is given by the Court while interpreting Order 39 rules 1 and 2 CPC. In the opinion of this Court, the pivotal question is whether while dealing with an application preferred under Order 39 rules 1 and 2 the trial Court can permit the parties to cross-examine the person whose affidavit has been filed by the other side. 10. Order 39 CPC reads as under : “1. In the opinion of this Court, the pivotal question is whether while dealing with an application preferred under Order 39 rules 1 and 2 the trial Court can permit the parties to cross-examine the person whose affidavit has been filed by the other side. 10. Order 39 CPC reads as under : “1. Cases in which temporary injunction may be granted -- Wherein any suit it is proved by affidavit or otherwise.” No doubt the provision is silent regarding the power of the Court to permit the parties to cross-examine the deponent in proceeding under Order 39 rules 1 and 2 CPC. As discussed above, certain High Courts have opined that cross-examination of deponent is not permissible at this stage, yet I am bound by the finding given by the M.P. High Court in Rajendra Prasad (Supra). Same view is also taken by a Division Bench of Rajasthan High Court in AIR 1991 Raj 56 (Ram Swaroop and others v. Bholu Ram). After following AIR 1983 AP 114 (Ali Bin Aifan), the Division Bench opined that as per principle of natural justice, under Order 39 rules 1 and 2 the Court has power to call the deponent for cross-examination. The Rajasthan High Court considered various judgments of different High Courts. I am in respectful agreement with the said view of the Rajasthan High Court. 11. Apart from this, the matter may be examined from yet another angle. There may be cases where the affidavit filed raises doubt in the mind of Court. In exceptional cases, where in the interest of justice it is necessary to examine the truth of the matter, the trial Court cannot be held to be power less in this regard. In the facts and circumstances of the present case, the question of delay which may frustrate the injunction would not arise because in the present case, it is the plaintiff who is seeking permission to cross-examine the deponent. Thus, it cannot be accepted as a thumb rule that in no circumstances the trial Court can permit the cross-examination of deponent in proceedings under Order 39 rules 1 and 2. This cannot be forgotten that statute is to be interpreted to advance the cause of justice. Too technical a construction of provision that leaves no room for reasonable elasticity of interpretation should be avoided. This cannot be forgotten that statute is to be interpreted to advance the cause of justice. Too technical a construction of provision that leaves no room for reasonable elasticity of interpretation should be avoided. {See : (1975)1 SCC 774 [Sushil Kumar Sen v. State of Bihar], and AIR 1955 SC 425 [Sangram Singh v. Election Tribunal Kotah]}. 12. The apex Court opined that the procedure is designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties , not a thing designed to trip people up. It is further opined that morality of justice at the hand of law troubles a Judge’s conscience and points an angry interrogation at the law reformer. The humanist rule that procedure should be handmaid, not the mistress of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence–prosessual, as much as substantive. In (1976)1 SCC 719 (State of Punjab v. Shamlal Murari), the apex Court held that processual law is not to be a tryant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. In (1984)3 SCC 46 (Ghyanshyam Dass v. Dominion of India), the apex Court reiterated the need of interpreting a part of the adjective law dealing with procedure alone in such a manner as to subserve and advance the cause of justice rather than to defeat it as all the laws for procedure are based on this principle. In (2005)4 SCC 480 (Kailash v. Nankhu and others), the apex Court held that the provisions of Civil Procedure Code or any other procedural enactment ought not to be construed in a manner such which would leave the Court helpless to meet extraordinary situations in the ends of justice. 13. In view of aforesaid analysis, this Court is of the view that in exceptional circumstances the trial Court has power to permit the cross-examination of deponents. In view of this finding, It is not necessary to decide whether Order 19 rules 1 and 2 can be applied in Order 39 rules 1 and 2 proceeding. 13. In view of aforesaid analysis, this Court is of the view that in exceptional circumstances the trial Court has power to permit the cross-examination of deponents. In view of this finding, It is not necessary to decide whether Order 19 rules 1 and 2 can be applied in Order 39 rules 1 and 2 proceeding. Since I am of the view that trial court has inherent power even under Order 39 rules 1 and 2 to permit cross-examination of deponent, the order passed by the trial Court, by taking assistance of Order 19 rules 1 and 2, at best may be treated as an order passed by wrong quoting of provision. This is trite in law that if power can be traced elsewhere, order cannot be interfered with on the ground that it is passed by relying on a different and wrong provision. 14. Considering the aforesaid, in my view, the Court below has taken a view to advance the cause of justice and did not permit itself to be strangulated by hyper-technicalities. I find no reason to interfere with this plausible view in the present proceeding under Article 227 of the Constitution. 15. Petition is bereft of merits and is hereby dismissed. No Costs. ...........