Kannammal vs Bagyammal

The respondent filed a suit in O.S.No.158 of 96 against the petitioner seeking a prayer for permanent injunction restraining the petitioner from

interfering with her possession. Pending the suit, the respondent filed LA.No.271 of 1996 seeking a prayer for an order of temporary injunction;

The petitioner filed a counter objecting the said petition. Pending proceedings the petitioner filed I.A.No.224 of 97 in I.A.No.271 of 96 under

Order 19, Rule 2 C.P.C. to direct the respondent herein to appear before the court so as to enable her to cross-examine the plaintiff with respect

to the averments in the affidavit filed in I.A.No.217 of 1996. That was resisted by the respondent by filing a counter. The lower court in its order

dated 21.3.97 dismissed the petition and aggrieved against the same the petitioner has filed the above revision.

The petitioner has filed the above application under Order 19, Rule 2, C.P.C, to direct the plaintiff to come to the court for the purpose of

cross-examination of the defendant. The petition itself cannot be maintained, as Order 19, Rule 2, C.P.C. cannot be invoked in this case in view of

the fact that the affidavit is filed only in support of the petition and not as evidence as contemplated under Order 19, Rule 2, C.P.C. The affidavit

contemplated under Order 19, Rule 1 of the Code is for the purpose of proving any particular fact or facts or of any witness. Ordinarily a fact has

to be proved by oral evidence, but the courts subject to the conditions laid down in Order 19, C.P.C may ask a particular fact to be proved by

affidavit.

The learned counsel appearing for the petitioner relied upon the judgment reported in Sakalabhaktula Vykunta Rao and Others Vs. Made

Appalaswamy, . The learned Judge of the Andhra pradesh High Court has held that the lower court should not have refused to order the petition

under Order 19, Rule 2, C.P.C. filed by the defendant. In that case, the plaintiff filed a third party affidavit by way of evidence to support his case.

So the court, applying the said provision viz., Order 19, Rule 2, C.P.C. held that such a petition is maintainable. But in this case, the affidavit filed

by the respondent is not by way of evidence; but only in support of the petition. So the said petition cannot be construed as it is filed by way of

evidence. So the lower court is correct in rejecting the petition.

Hence I do not find any merits in the civil revision petition and accordingly it is dismissed. No costs.