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2014 DIGILAW 174 (GAU)

Mubarak Hussain v. Subham Planners Pvt. Ltd.

2014-02-12

C.R.SARMA

body2014
JUDGMENT C.R. Sarma, J. 1. Heard Mr. S B Rahman, learned counsel, appearing for the petitioner. Also heard Mr. D. Baruah, learned counsel, appearing for the respondent. The respondent, as plaintiff, instituted T.S. No. 152 of 2012 against the petitioner/defendant, in the court of the learned Civil Judge No. 1, Kamrup, Guwahati, seeking a decree for declaration and cancellation of the alleged sale deed, agreement for sale, power of attorney and also for partition of the suit property (Schedule -B land), recovery of khas possession and permanent injunction. 2. In the said suit, the plaintiff, by seeking a temporary injunction, filed an application under Order 39, Rules 1 & 2 of the Code of Civil Procedure (for short CPC). The said application for injunction has been supported by an affidavit. 3. The contesting opposite party/defendant No. 15 i.e. the present respondent, by filling an application under Order 19 Rule 2 read with Section 151 CPC, prayed for permission for cross-examining the deponent of the said affidavit, who was the attorney of the plaintiff petitioner (respondent in the petition). 4. The plaintiff/petitioners No. 1 and 3 to 9, in the suit/Misc. case, by filing an objection, resisted the said prayer on the ground that Order 19 Rule 2 CPC does not permit cross-examination of the deponent of the affidavit, unless evidence is adduced by an affidavit. The learned civil Judge No. 2, Kamrup, after hearing both the parties and considering the entire aspect of the matter allowed the prayer, made by the defendant/opposite party No. 15 and directed the said deponent of the affidavit i.e. present petitioner, Md. Mubarak Hussain to appear for cross- examination. 5. Aggrieved by the said order, the deponent of the affidavit, as petitioner, has come up with this civil revision petition. 6. Mr. S B Rahman learned counsel, appearing for the petitioner, has submitted that the learned trial Judge misread the provision prescribed by Order 19 Rule 2 CPC and wrongly held that the deponent of the affidavit, who filed the same in support of the application under Order 39 Rules 1 & 2 CPC, can be cross examined by the opposite party. S B Rahman learned counsel, appearing for the petitioner, has submitted that the learned trial Judge misread the provision prescribed by Order 19 Rule 2 CPC and wrongly held that the deponent of the affidavit, who filed the same in support of the application under Order 39 Rules 1 & 2 CPC, can be cross examined by the opposite party. The learned counsel for the petitioner, referring to the decision, held in the case of Rajib Barooah and another versus Hernendra Prasad Barooah & Ors., reported in AIR 1994 Gauhati 52 has submitted that the courts dealing with the application filed under Order 39 Rules 1 & 2 CPC has to dispose of the matter regarding injunction on the basis of the affidavit or otherwise without examination and cross examination of the witnesses, including the deponent of the affidavit. In support of his contention, the learned counsel has also referred to the decision held in the case of Shetty Chandra Shekar & Ors. v. Neeti Ramulu & Ors, reported in 2008 (2)ALD 709 . 7. Refuting the said argument, advanced by the learned counsel for the petitioner, Mr. D. Baruah, learned counsel for the respondent, referring to the decision, held in the case of Ayaaubhkan Noorkhan Pathan v. State of Maharastra & Ors, reported in (2013) 4 SCC 465 and Rajeswar Rabha v. Khagen Chandra Kalita & Ors. reported in (1992) 1 GLR 334 has submitted that as the plaintiff i.e. the present petitioner, in support of his prayer for injunction, filed an affidavit towards proving the allegations, made in the said application, in order to negate the contention made in the application for injunction, the defendant/opposite party, for the ends of justice, he is to be allowed to cross-examine the deponent of the aforesaid affidavit. 8. It is also submitted that, in view of the provision laid down in Order 19 Rule 2 CPC, the deponent of the affidavit filed in support of his contentions, made in an application under Order 39 Rules 1 and2 CPC, can be allowed to be cross-examined. 9. In the case of Rajib Barooah and another (supra), a learned single Judge of this Court, while considering the prayer for cross-examination of the persons mentioned in the schedule to the petition, filed under Order 39 Rule 1 and 2 CPC observed: 17. 9. In the case of Rajib Barooah and another (supra), a learned single Judge of this Court, while considering the prayer for cross-examination of the persons mentioned in the schedule to the petition, filed under Order 39 Rule 1 and 2 CPC observed: 17. The prayer for granting injunction is discretionary to be exercised on sound judicial principles. The very purpose of granting injunction is to preserve the status quo while the rights are being litigated and the onus is on the party seeking an order of injunction to show that he needs injunction. In short, the application for injunction is to be decided in a summary manner, and therefore 0.39 envisages the disposal of a petition for injunction by an affidavit or otherwise. The Legislative intent is clear and apparent from the very wordings of the O. 39 that these matters should be disposed of as quickly as possible. Under 0.39, R. 1 empowers a Court to grant temporary injunction. On affidavit or otherwise with the soul object that the matter may be disposed of without going through full length procedure of examination and cross examination of witnesses, because if such a lengthy procedure is adopted the very purpose and object of granting injunction will be frustrated. The intention is patent from Rule 3 -A of 0.9 which indicates that the matter should be disposed of as early as possible. Order 39, Rule 1, therefore, prescribes a procedure 1 for granting injunction on the basis of affidavit or otherwise. The word affidavit has been mentioned so that without going through the evidence, the court may decide the matter of injunction pending disposal of the suit. Rights of the parties will be determined in the suit itself. 10. In the case of Shetty Chandra Shekar (supra) a learned single Judge of the High Court of Andhra Pradesh observed that the provision prescribed by Order 19 Rule 2 CPC could not be made applicable in respect of an affidavit filed in support of a petition. The court also observed that the language employed in the provision i.e. the provision of Order 19 Rule 2 CPC would not indicate conferring any power on the court to call a person swearing the affidavit filed in support of the petition, for cross-examination and that the affidavit filed in support of petition shall not be treated as an affidavit filed in the way of evidence. 11. In the cases of Ayaaubhkan Noorkhan Pathan (supra), the Supreme Court observed, 31. It is a settled legal proposition that an affidavit is not "evidence" within the meaning of Section 3 of the Evidence Act, 1872 (hereinafter referred to as "the Evidence Act"). Affidavits are, therefore, not included within the purview of the definition of "evidence" as has been given in Section 3 of the Evidence Act, and the same can be used as "evidence" only if, for sufficient reasons, the court passes an order under Order 19 of the Code of Civil Procedure, 1908 (hereinafter, referred to as "CPC"). Thus, the filing of an affidavit of one's own statement, in one's own favour, cannot be regarded as sufficient evidence for any court or tribunal, on the basis of which it can come to a conclusion as regards a particular fact situation. In the said case, the Supreme Court further referred and observed "In the case of Ramesh Kumar v. Kesho Ram, reported in 1992 (Supp). (2) SCC 623, this court considered the scope of application of the provisions of Order 19 Rules 1 and 2 CPC in a rent control matter, observing as under:- 9....The court may also treat any affidavit filed in support of the pleadings itself as one under the said provision and call upon opposite side to traverse it. The court, if it finds that having regard to the nature of the allegations, it is necessary to record oral evidence tested by oral cross-examination, may have recourse to that procedure. 12. In the case of Rajeswar Rabha (supra), a learned Single Judge of this court, while considering an application under Order 19 Rule 2 CPC filed by the defendant for cross-examination of the deponent of the affidavit filed in an application under Order 39 Rules 1 and 2 CPC observed "The expression 'or otherwise' means that the allegations made in the application can be proved not only by affidavit but also by documentary or oral evidence. As such, it cannot be said that an application for temporary injunction under Order 39 Rule 1 can be decided only on the basis of the statement made in his affidavit. As such, it cannot be said that an application for temporary injunction under Order 39 Rule 1 can be decided only on the basis of the statement made in his affidavit. In my considered opinion under Order 39 Rule 1, the court has not only the power to dispose of the application praying for temporary injunction on affidavits but also has jurisdiction to summon the deponent of the affidavit for cross examination either suo-moto or at the instance of a party. However, elaborate procedure of adducing evidences to prove a case for interim injunction is not warranted." 13. The Court, with the above observation, made direction to allow the defendant to cross-examine the deponent of the affidavit, filed under Order 39 Rules 1 and 2 CPC for grant of injunction. 14. As required by Order 39 Rules 1 and 2 CPC, the petitioner, who seeks a temporary injunction is required to prove the existence of the ingredients mentioned in Rule 1(a), (b) and (c) CPC of Rule 1Order 39 CPC by an affidavit or otherwise and one of the manners of proving the same is by filing an affidavit 15. Order 19 Rule 2 CPC which provides the power to-order the attendance of deponent for cross-examination reads 1(i) 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 the cross examination of the deponent. 16. As provided by Order 19 Rule 1 CPC, the deponent of an affidavit, who gives the evidence by filing the affidavit, may be cross-examined. Order 39 Rule 1 CPC refers to the term 'prove' and not "evidence". 17. In the case at hand, the issue involved is as to whether the deponent of the affidavit, filed in support of an application, made under Order 39 Rules 1 and 2 CPC, can be allowed to be cross-examined by the opposite party, in exercise of power vested by order 19 Rule 2 CPC? 18. From the above cited decisions, rendered by our High Court in the case of Rajib Baruah and another (supra) and Rajeswar Rabha (supra), it appears that there are contradictory decisions regarding applicability of the provisions, prescribed by Order 19 Rule 2 CPC, in respect of an application, filed under Order 39 Rules 1 and 2 CPC. 18. From the above cited decisions, rendered by our High Court in the case of Rajib Baruah and another (supra) and Rajeswar Rabha (supra), it appears that there are contradictory decisions regarding applicability of the provisions, prescribed by Order 19 Rule 2 CPC, in respect of an application, filed under Order 39 Rules 1 and 2 CPC. Therefore, I am of the considered opinion that, for the sake of uniformity of decision, this matter needs to be examined by a larger Bench. The Registry shall place this matter before the Hon'ble Chief Justice for favour of consideration for placing the matter before the appropriate Bench.