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2018 DIGILAW 1168 (BOM)

Babulal Onkardas Kabra v. Nilesh Pukhraj Rathod

2018-04-27

V.L.ACHLIYA

body2018
JUDGMENT V.L. Achliya, J. - Rule. Rule made returnable forthwith. By consent heard finally. 2. The short question that falls for consideration in this petition is whether in a temporary injunction proceeding filed under Order 39, Rule 1 of C.P.C., the Court has the jurisdiction on the application of either party to adduce oral evidence for deciding such application. 3. Before adverting to deal with the submissions advanced, it is useful to refer few facts leading to filing of petition. The respondents herein have filed R.C.S. No. 213/2017 claiming perpetual injunction as well as mandatory injunction against the petitioner. By way of interim relief filed a application for temporary injunction under Order 39, Rule 1 of C.P.C. 4. The respondents/plaintiffs have approached with the case that the petitioner is a tenant of suit premises bearing municipal house No. 4/202 CTS No. 3131/7. Towards western side of said premises, there is open space and well which is under common use of owner of CTS No. 3131/1 to 3131/9. So also, there is toilet/bathroom in common use of the residents. The petitioner - defendant has constructed wall admeasuring 8 x 10 x 6 ft. in the open space and thereby restricted the use of open space, well and toilet/bathroom. In the back-ground of the facts pleaded in the plaint, the plaintiffs have claimed the relief of perpetual injunction as well as mandatory injunction to demolish the wall constructed in open space. By way of interim relief, the plaintiffs have moved application for temporary injunction under Order 39, Rule 1 of C.P.C. vide Exh. 6 seeking mandatory injunction against the defendant to demolish said wall. 5. On service of suit summons, the defendant appeared and filed Written Statement as well as Say to the application [Exh.6] and disputed the case putforth by the plaintiffs. The defendant opposed application [Exh.6] with contention that the reliefs claimed in the Suit as well as the application for temporary injunction are one and the same and granting of relief in the temporary injunction application would amount to grant of reliefs claimed in the Suit. The petitioner has taken a specific stand that the wall in question is in existence since many years and the defendant has not made construction as alleged by the plaintiffs. 6. Since the prayers in Suit as well as application made under Order 39, Rule 1 of C.P.C. i.e. Exh. The petitioner has taken a specific stand that the wall in question is in existence since many years and the defendant has not made construction as alleged by the plaintiffs. 6. Since the prayers in Suit as well as application made under Order 39, Rule 1 of C.P.C. i.e. Exh. 6 are identical and granting of relief in terms of application [Exh.6] would amount to grant of reliefs claimed in the Suit, the petitioner-defendant filed application vide Exh. 29 for permission to adduce oral evidence of himself and his witnesses for the purpose of deciding the application for temporary injunction i.e. Exh. 6. The respondent-defendant opposed the application with contention that application needs to be decided only on the basis of affidavits of parties as well as the documents produced in support of respective contentions. It is further contended that the application is filed with ulterior motive to prolong the hearing of application [Exh. 6] and urged to reject the application. 7. On due consideration of the rival submissions, trial Court has rejected the application [Exh.29] with observation the request of the petitioner - defendant to adduce oral evidence can not be entertained at the stage of deciding the application seeking temporary injunction and same can be entertained only after framing of issues. It is observed that at the stage of deciding the application seeking temporary injunction, the defendant can prove his case by filing affidavit and the documents in support of his case. Being aggrieved the petitioner-defendant has preferred this petition. 8. Mr. S.S.Bora, learned counsel for the petitioner-defendant assailed the impugned order with contention that the impugned order is ex-facie incorrect, contrary to scope of exercise of powers under Order 39, Rule 1 of C.P.C. It is contended that perusal of Order 39, Rule 1 of C.P.C. shows that, parties to the Suit are required to prove their case for temporary injunction by affidavit or otherwise. By placing emphasis over the word ''or otherwise'', learned counsel submits that the expression itself sufficient to infer that at the stage of consideration of temporary injunction, oral evidence can be adduced. It is contended that the expression ''or otherwise'' employed in the provision, itself reflect the legislative intention that the allegations made in the application can be proved not only by affidavit but also by documentary or oral evidence. It is contended that the expression ''or otherwise'' employed in the provision, itself reflect the legislative intention that the allegations made in the application can be proved not only by affidavit but also by documentary or oral evidence. It is contended that in exercise of powers under Order 39, Rule 1 of C.P.C., the Court not only empowered to dispose of the application for temporary injunction on the affidavits but also summon the deponent of affidavit for cross examination either suo mottu or at the instance of party seeking such deponent to be summoned for cross examination. In this back-ground the learned counsel submits that the impugned order is not sustainable in law as the trial Court has wrongly interpreted the provision and form the view that at the stage of deciding application for temporary injunction, oral evidence can not be permitted. 9. Learned counsel for the petitioner-defendant further submits that the proof or disproof of facts in a judicial proceeding by way of affidavit is permitted in deciding the interlocutory application only to save the time in disposal of such proceedings in which the Court does not decide the rights of the parties finally. In that view it can not be construed that while deciding application under Order 39, Rule 1 of C.P.C. in no circumstances the oral evidence can be permitted. He submits that the Courts are expected to decide the judicial proceedings only after they are satisfied with the proof or disproof of the facts required to be proved under law and not pass orders without such satisfaction merely because they are orders interlocutory in nature. It is submitted that in the given facts and circumstances of the present case since the nature of reliefs claimed in the application seeking temporary injunction and the Suit being one and the same, the trial Court ought to have allowed the application and permitted the defendant to adduce oral evidence. In this back-ground, learned counsel submitted that the impugned order passed is perverse, contrary to law and wrongful refusal to exercise of the jurisdiction vested with the Court in favour of the petitioner, which leads to mis-carriage of justice to petitioner and urged to set aside the order and allow the application. In this back-ground, learned counsel submitted that the impugned order passed is perverse, contrary to law and wrongful refusal to exercise of the jurisdiction vested with the Court in favour of the petitioner, which leads to mis-carriage of justice to petitioner and urged to set aside the order and allow the application. In support of the submissions advanced, learned counsel has referred and relied upon the decision of the High Court of Andhra Pradesh in the case of Nadella Estate Pvt. Ltd. vs. Prema Ravindranath and Ors. Dated 19/11/2014 in Civil Revision Petition Nos. 2548 and 2551 of 2014; C. Srinivasa Rao and Anr. vs. K.Manohar Rao and Ors. reported in AIR 1981 Andhra Pradesh 406 and decision of Delhi High Court in the case of Murari Lal vs. Nem Chand Jain etc. in Civil Revision Appeal No. 19 of 1974 decided on 15/03/1974 as well as the decision of this Court in the case of Keshav Punjiba Kadam and Ors. vs. Dattatraya Punjiba Kadam and Ors. in Writ Petition No. 5541 of 2013 decided on 10/07/2013. 10. On the other hand, learned counsel for the respondents-plaintiffs has supported the order passed by the trial Court. It is contended that to decide the interlocutory application on the basis of affidavit is a practice prevailing in the subordinate Courts. He submits that if the evidence of witnesses to be recorded in each of application seeking interlocutory orders, then the Court may not find time to decide the main Suit by conducting trial. He further submits that the cross examination of witness or party who has filed affidavit in respect of application seeking temporary injunction, can be allowed in exceptional circumstances. It is submitted that in the case in hand no exceptional circumstances exist so as to allow petitioner - defendant to adduce oral evidence at the stage of deciding interlocutory application. In support of submissions advanced, the learned counsel has referred and relied upon the decision of this Court in the case of Albina Alen Fernandes vs. Kelwyn John Nicholas Pereira and Ors. reported in 2011 (4) Bom. C.R. 644 and the decision of the High Court of Madras in the case of V. Baby vs. Sekar in C.R.P. (PD) No. 2826 of 2014 dated 02/12/2014. 11. reported in 2011 (4) Bom. C.R. 644 and the decision of the High Court of Madras in the case of V. Baby vs. Sekar in C.R.P. (PD) No. 2826 of 2014 dated 02/12/2014. 11. Perusal of the impugned order prima facie reveals that the trial Court has rejected the application after forming the view that application under Order 39, Rule 1 of C.P.C. is to be decided only on the basis of affidavit and documents filed by parties in support of their contentions and permission to adduce oral evidence can not be granted at the stage of deciding such application. It appears that the trial Court was of the view that the request to adduce oral evidence can be entertained only after settlement of issues and it is impermissible to entertain such request while dealing with application filed under Order 39, Rule 1 of C.P.C. 12. In my view, learned counsel for the petitioner is justified in contending that the trial Court has erred in interpreting the provisions of Order 39, Rule 1 of C.P.C. and taking view that while deciding the application under Order 39, Rule 1 and 2 of C.P.C., the application can be decided only on the basis of rival affidavits, documents and it is beyond the scope of exercise of powers under Order 39, Rule 1 of C.P.C. to allow parties to adduce evidence. There is no reason to provide restricted meaning to the word "or otherwise" used in Order 39, Rule 1 of C.P.C.. The word '' or otherwise'' within its sweep include leading of oral evidence in a case of exceptional in nature. In general the application for temporary injunction needs to be decided on the basis of facts to be proved by way of affidavit and the documents relied still there may be a case of exceptional in nature where Court may require the parties to lead oral evidence of himself as well as the witnesses. However, such powers to be exercised sparingly and that too in a case of very exceptional in nature and the facts and circumstances of the case are such that it warrant such exercise to be undertaken for the proper decision of the case. 13. However, such powers to be exercised sparingly and that too in a case of very exceptional in nature and the facts and circumstances of the case are such that it warrant such exercise to be undertaken for the proper decision of the case. 13. Learned counsel for the respondent-plaintiff has also conceded to the legal position that while deciding interlocutory application in a case of exceptional in nature if exceptional circumstances are made out, the Court may within exercise of its discretion entertain such request to adduce oral evidence. He submitted that such exercise of powers are to be made very sparingly and in exceptional circumstances, wherein the Court dealing with the interlocutory application deem it expedient to allow the cross examination of deponent to prove certain points. In this context, learned counsel referred and relied upon the decision of this Court in the case of Albina Alen Fernandes vs. Kelwyn John Nicholas Pereira and Ors. [supra], wherein this Court has held that the interlocutory applications are decided on the basis of affidavit of parties but the Court in exercise of its discretion allow the cross examination of deponent but such powers to be exercised sparingly and in a case of exceptional in nature. In para No. 3, the Court has observed as under : " Rule 1 of Order 19 of the Code of Civil Procedure empowers the Court for sufficient reason to order that any particular facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such terms as the Court thinks reasonable. Ordinarily, interlocutory applications are Date of Decision : affidavits and this is a practice prevalent in the subordinate courts in the State of Maharashtra for years. The practice is good as it saves the time of the Court and reduces clogging of the courts. If the evidence of every witness at the interlocutory stage is required to be recorded in person before the Court, the Court may not find time for the final trial of suits. Allowing of a cross examination of any witness or a party who has filed an affidavit at the stage of interim injunction is discretionary and can be allowed only in exceptional circumstances. In the present case, at the request of the plaintiff, the Court permitted the cross examination of the defendant affiant. Allowing of a cross examination of any witness or a party who has filed an affidavit at the stage of interim injunction is discretionary and can be allowed only in exceptional circumstances. In the present case, at the request of the plaintiff, the Court permitted the cross examination of the defendant affiant. Such permission can also be conditional and if the Court at any stage comes to the conclusion that cross examination is unnecessarily prolix or irrelevant questions are being asked, the Court can curtail the cross examination and limit it only to certain points to save the time of the Court. This can be done initially while granting permission for cross examination or even subsequently while the cross examination is in progress. Of course, the decision to permit cross examination generally or limited to certain points only must be exercised judicially and judiciously and ordinarily to save valuable judicial time without causing injustice to any party. " 14. In the case of Keshav Punjiba Kadam and Ors. vs. Dattatraya Punjiba Kadam and Ors. [supra] while dealing with the similar question, the Single Judge of this Court has held that though the party to suit entitled to lead the oral evidence for deciding the interlocutory application under Order 39, Rule 1 of C.P.C. but same can not be claimed as matter of right and depends upon facts and circumstances of the case. In para 3 and 6 the Court has observed as under : "5. Paragraph 6 of the Judgment in the case of Benudhar Das [supra], reads as under : "The residual question is whether the witnesses in addition to deponents of affidavits can be examined to further the case of the parties and whether the expression ''or otherwise'' encovers it. As indicated above, the order of temporary injunction can be passed on the Court''s satisfaction about the existence of circumstances indicated in the rule. As a general rule, injunction is to be granted only when damage can not be granted only when damage can not be compensated sufficiently. (See Halsbury''s Modern Equity, page 560). For that purpose, circumstances necessitating grant of temporary injunction have to be proved by affidavit or otherwise. The Court has to be satisfied about their existence. The grant of temporary injunction is in exercise of a discretionary jurisdiction. Its primary concern is preservation of property in dispute till legal rights are ascertained. (See Halsbury''s Modern Equity, page 560). For that purpose, circumstances necessitating grant of temporary injunction have to be proved by affidavit or otherwise. The Court has to be satisfied about their existence. The grant of temporary injunction is in exercise of a discretionary jurisdiction. Its primary concern is preservation of property in dispute till legal rights are ascertained. When an interim injunction is sought, the court may have to examine whether the party seeking the assistance of the court was at any time in lawful possession of the property and if it is so established, one would prima facie ask the other side contesting the suit to show how the plaintiffs were dispossessed ? For resolution of this dispute, it would not be certainly impermissible for the Court to consider evidence of the witnesses in addition to or in exclusion of affidavits and examination of the deponents thereof. It would depend on the nature of the dispute. There can not be no hard and fast rule. The Court dealing with such an application has to decide the course to be adopted by it, keeping in mind the fact that the disposal of the application has to be in a summary manner. " 6. Perusal of extracted portion shows that the primary concern of the Court while deciding injunction application, is preservation of property in dispute till legal rights are ascertained. When interim injunction is sought, the Court may have to examine whether the party seeking the assistance of the court, was at any time in lawful possession of the property and if it is so established, one would prima facie ask the other side contesting the suit to show how the plaintiffs were dispossessed. It is further observed that it would not be certainly impermissible for the Court to consider the evidence of the witnesses in addition to or in exclusion of affidavits and examination of the deponents thereof. It would depend on the nature of the dispute. There can not be hard and fast rule. The Court dealing with such an application has to decide the course to be adopted by it, keeping in mind the fact that the disposal of the application has to be in a summary manner. " 15. In the case of C. Srinivasa Rao and Anr vs. K. Manohar Rao and Ors. [supra] and Nadella Estate Pvt. Ltd. vs. Prema Ravindranath and Ors. " 15. In the case of C. Srinivasa Rao and Anr vs. K. Manohar Rao and Ors. [supra] and Nadella Estate Pvt. Ltd. vs. Prema Ravindranath and Ors. [supra] referred and relied by the learned counsel for the petitioner, dealing with similar issue, the Court has held that while dealing with application filed under Order 39, Rule 1 of C.P.C., there is no bar to summon the deponent for cross examination if the Court thinks it necessary to do so in the interest of justice. In the case of C. Srinivasa Rao and Anr. vs. K.Manohar Rao and Ors. [supra] in paragraph Nos. 4 and 5, the Court has observed as under : "4. The short question that arises for decision in this revision is whether, when affidavits are filed in a temporary injunction proceeding under Order 39, Rule 1, C.P.C. the Court has the jurisdiction on the application of either party to summon the deponents of the opposite party for cross examination. 5. The facts in dispute in a judicial proceeding are decided by the judicial tribunals by reference to evidence adduced by the contending parties. As defined in section 3 of the Indian Evidence Act, "evidence" means and includes - (1) 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; and (2) all documents produced for the inspection of the Court; such documents are called documentary evidence. The media, through which the evidence of facts either disputed or required to be proved is conveyed to the mind of a judicial tribunal, consist of witnesses and documents. Affidavits of deponents are neither oral evidence nor documentary evidence within the meaning of section 3 of the Indian Evidence Act. Proof or disproof of facts by affidavits is a departure from the normal rule and such departure is permissible only when the law specifically provides for the same. Affidavit evidence is permitted in writ proceedings, contempt proceedings and certain proceedings under the Arbitration Act. Generally, affidavit evidence is not permitted in proceedings of a substantial nature in so far as it is repugnant to the principles of natural justice that a Court should act on the statement of a person who has not been examined before it or whose statement has not been tested by cross examination. Generally, affidavit evidence is not permitted in proceedings of a substantial nature in so far as it is repugnant to the principles of natural justice that a Court should act on the statement of a person who has not been examined before it or whose statement has not been tested by cross examination. In proceedings regulated by the Code of Civil Procedure, as provided in Order 18, Rule 4, the ordinary rule is to record evidence in open Court in the presence and under personal supervision of the Judge. Order 19, Rule 1 C.P.C., however provides that "any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable." It is further provided in this rule 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 as order shall not be made authorising the evidence of such witness to be given by affidavit." Order 19, Rule 2 reads as follows : "(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." Order 39, Rule 1 reads : "Where in any suit it is proved by affidavit or otherwise --(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or (b) that the defendant threatens, or intends to remove or dispose of his property with a view to defraud his creditors, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the Court thinks fit until the disposal of the suit or until further orders." Order 39, Rule 1 C.P.C. permits proof of the required circumstances for the grant of a temporary injunction by affidavits. The proof is not confined to affidavits only. The proof is not confined to affidavits only. The mere fact that affidavits can be filed in a temporary injunction proceeding under Order 39, Rule 1 C.P.C. does not require the Court to decide the controverted questions in that proceeding only by reference to affidavits. Order 39, Rule 1 C.P.C. merely enables the Court to decide the disputed questions in that proceeding on the basis of affidavits and the language of the provision does not incorporate any prohibition against the Court to summon the deponents for examination or cross examination. The contention that when affidavits are filed in a temporary injunction proceeding under Order 39, Rule 39 Rule 1 C.P.C., the Court has no power to summon the deponents, but that the Court has got to decide one way or the other by reference to the affidavits and affidavits alone does not commend itself to me as sound or correct. No doubt, as contended by the learned counsel for the respondents, Sri Narayana Rao, Order 19, Rule 2 C.P.C. is applicable only in the case of affidavits filed by an order of the Court passed under Order 19, Rule 1 and that rule may not have any application to the affidavits filed under the statutory permission provided under Order 39, Rule 1 C.P.C., but it should be remembered that the extraordinary method of proof or disproof of facts in a judicial proceeding by affidavit evidence is permitted in an interlocutory matter only to save time in the disposal of the proceeding in which the Court does not decide the rights of the parties finally. It can not however be construed that the statutory provision under Order 39, Rule 1 C.P.C. is intended to dispense with the very object for which a Court is constituted. The Courts are to dispose of the judicial proceedings only after they are satisfied with the proof or disproof of the facts required to be proved under the law and not to pass orders without such satisfaction merely because they are orders in interlocutory matters. The Courts are to dispose of the judicial proceedings only after they are satisfied with the proof or disproof of the facts required to be proved under the law and not to pass orders without such satisfaction merely because they are orders in interlocutory matters. When affidavits are filed by the parties, each set of affidavits affirming the case of each of the contending parties and the Court considers it necessary to examine one or some or all of the deponents to arrive at a proper decision of the requirements for the grant or refusal of a temporary injunction it would not be correct to say that the Court has no power to summon any of the deponents, but that the Court has to necessarily pass an order one way or the other even if there should be no judicial satisfaction in regard to the existence or otherwise of the facts constituting the requirements for the grant of a temporary injunction. The Court has always its inherent power to pass such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the Court." 16. In the case of Nadella Estate Pvt. Ltd. vs. Prema Ravindranath and Ors. [supra], in paragraph 10 observed as under : "10. In Abdul Hameed vs. Mujeedul-Hasan, AIR 1975 All 398 it was held that a Court can not be deemed to have committed any illegality in summoning the deponents for cross examination in a proceeding under Order 39, Rule 1 C.P.C., if the Court considered it necessary to so summon the deponents in view of the conflicting affidavits. Referring to Khavji Himji''s case, AIR 1968 Guj 198 , Jagmohanlal, J., observed : "According to the Gujarat High Court decision in Mavji Khimaji (supra) these safeguards are not necessarily inbuilt in a proceeding relating to an interlocutory order under Order 39, Rule 1 Civil Procedure Code, but even in that proceeding there is no bar to the Court to summon a witness for cross examination if it thinks it necessary to do so in the interest of justice. " 17. " 17. Thus, in the light of discussion made above, the legal position emerges that in a proceeding under Order 39, Rule 1 of C.P.C. no bar operates for the Court to summon a witness for cross examination if the Court thinks it necessary to do so in the interest of justice. Allowing of cross examination of deponent at the stage of interim injunction is discretionary and same can be allowed only in exceptional circumstances. Such permission can also be conditional and if the Court at any stage comes to the conclusion that cross examination is unnecessary or irrelevant, the Court can curtail the cross examination and limit it only to certain points to save the time of the Court. There can not be any hard and fast rule providing the specific circumstances wherein such powers to be exercised. While dealing with such application, the Court has to decide the course to be adopted by it, keeping in mind the fact that disposal of application has to be in a summary manner. So also, no party to the Suit can claim as a matter of right for leading oral evidence for deciding the application for interim injunction under Order 39, Rule 1 of C.P.C. While granting such permission, the Court should ensure that the party seeking permission of the Court to cross examine the deponent must disclose the reasons why it is necessary to cross examine the deponent. The Court should ensure that such request for cross examination is genuine and necessary for the proper decision of the case. The Court must ensure that same is not used as a tactic to delay the proceeding. 18. Thus, reaching to the conclusion that it is very much within the powers of the Court dealing with application under Order 39, Rule 1 of C.P.C. to entertain the request for adducing oral evidence, the impugned order is not sustainable in law and liable to be set aside. Since the trial Court has declined to entertain the application on the ground that such request can not be entertained at the stage of dealing with application under Order 39, Rule 1 of C.P.C., it is necessary to remand the case for deciding the application [Exh.29] afresh on its own merit. Accordingly, the impugned order is set aside. Since the trial Court has declined to entertain the application on the ground that such request can not be entertained at the stage of dealing with application under Order 39, Rule 1 of C.P.C., it is necessary to remand the case for deciding the application [Exh.29] afresh on its own merit. Accordingly, the impugned order is set aside. The trial Court is directed to hear the application [Exh.29] afresh and decide the same on its own merit. 19. Rule made absolute in above terms.