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2020 DIGILAW 1270 (MP)

Girraj Bansal v. Tanmay Bansal

2020-12-15

G.S.AHLUWALIA

body2020
ORDER 1. This miscellaneous petition under Article 227 of the Constitution of India has been filed against the order dated 13.10.2020 passed by 13th Additional District Judge, Gwalior in RCSA/267/2020 by which the application filed by the petitioner/defendant under Order 19 rule 2 of CPC for cross-examination of the witnesses has been rejected. 2. It is the case of the petitioner that the respondent No.1 has relied upon the affidavits of Ramniwas Yadav, Naveen Kumar Agrawal and Sanjeev Bansal. 3. However, during the course of arguments, it was submitted by Shri K.N. Gupta, Senior Advocate that the original copies of affidavits of the above-mentioned witnesses have not been filed along with an application under Order 39 rules 1 and 2 of CPC and, therefore, the petitioner has no right to cross-examine the witnesses on the basis of photocopies of the affidavits. 4. Heard the learned counsel for the parties. 5. It appears that the respondent No.1 has not filed the original copies of the affidavits of above-mentioned three witnesses. Unless and until the original affidavits of the witnesses are on record, the same cannot be looked into for any purposes in favour of the respondent No.1. It appears that the trial Court lost sight of this important fact and rejected the application filed by the petitioner under Order 19 rule 2 of CPC. In fact the trial Court should have held that unless and until the original affidavits of these above-mentioned three witnesses are filed, the question of cross-examining these witnesses would not arise. The trial Court cannot rely upon the photocopies of the affidavits either in favour or against the petitioner. Accordingly, the impugned order dated 13.10.2020 is hereby set aside and the application filed by the petitioner under Order 19 rule 2 of CPC is dismissed on the ground that in absence of original affidavits of above-mentioned three witnesses, no right has accrued in favour of the petitioner to cross-examine these witnesses because photocopies of these three witnesses cannot be considered by the trial Court either in favour or against the petitioner. 6. Needless to mention here that in case if the respondent No.1 files the original affidavits of the above-mentioned three witnesses, then the petitioner shall have a right to file an application under Order 19 rule 2 of CPC seeking permission to cross-examine the witnesses. 6. Needless to mention here that in case if the respondent No.1 files the original affidavits of the above-mentioned three witnesses, then the petitioner shall have a right to file an application under Order 19 rule 2 of CPC seeking permission to cross-examine the witnesses. If such an application is filed, then the trial Court shall decide the application without getting prejudiced by any reasoning assigned by it in the impugned order. 7. With aforesaid observations, the petition is finally disposed of. Somyadeep Dwivedi for petitioner; K.N. Gupta with Praveen Newaskar for respondent No.1.