Ranjit Kumar Malo and Another vs Khanindra Nath Gayan

R.K. Manisana, J.—This revision petition arises from an order of the Assistant District Judge, Barpeta made on 17.7.1993 in Misc.(J) Case No. 20 of 1993 arising out of title suit No. 14 of 1993.

In the Title Suit No. 14 of 1993 the respondent herein is the plaintiff and the petitioners are the defendants. In the suit, the plaintiff filed an application(Misc. (J) Case No. 20 of 1993) under Order XXXIX, Rules 1 and 2 Code of Civil Procedure, praying for temporary injunction restraining the defendants from dispossessing the plaintiff from the suit fishery, and from selling the plaintiff from the suit fishery and from selling or sun-letting the suit fishery. The defendants made an application under Order XIX Rules 1 and 2 read with Section 151 CPC praying for attendance of the plaintiff in person inn Court and to allow the defendants to cross-examine him. The trial Court, by an order dated 17.7.1993, rejected the application by holding, inter alia, that the defendants have set up a counter-claim against the plaintiff and also have filed an application under Order XXXIX Rule 1 of the Code praying for injunction against the plaintiff, and that, under the circumstances of the cased, the defendants have "still wide scope open for them when the same matters in two Misc. cases" would be heard.

3.Order XIX, Rule 1, CPC provides:

Power to order any point to be prove by affidavit-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:

Provided that where it appears to the Court that either party bonafide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit.

The Supreme Court has, in Sudha Devi Vs. M.P. Narayanan and Others, , held that affidavits are not included in the definition of evidence in Section 3 of the Evidence Act, but the affidavits can be used as evidence only if or sufficient reasons Court passes an order under Order XIX, Rule 1, Code of Civil Procedure. Therefore, order XIX, Rule 1, enables the Court to order any particular fact or facts to be proved by an affidavit evidence depending upon the nature of the case of a particular case or fact. Although Order XIX, Rule 1, is a sort of exception to Order XIX, Rule 4, Code of Civil Procedure, which states that the evidence of the witnesses in attendance shall be taken in open Court in the presence and under the personal direction and superintendence of the Judge, it contemplates a quick disposal of the business before the Court. However, under the proviso to Order XIX Rule 1 where either party bonafide desires the production of the deponent for cross-examination and such deponent can be produced, the Court has no power, under Rule 1, to order affidavit evidence.

Order XIX, Rule 2, Code of Civil Procedure, runs as follows:

Power to order attendance of deponent for cross-examination -(1) Upon any application evidence may be given by affidavit, but the Court may, at the instance if 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" A reading of Rule 2 makes it clear that it shall apply only to such matters where the Code provides that the dispute can be decided on evidence by affidavits; otherwise not, for example, an application for injunction under Order XXXIX, Rule 1, which says that facts averred in the application under the Code like the one for injunction,such as applications for arrest before judgment, attachment before judgment etc. Therefore, Order XIX, Rule 2, shall not apply to applications, if the Code does not provide that evidence may be given by affidavit; and in such an application, Rule, 1 may apply.

There is distinction between Rules 1 and 2 Under Rule 1, affidavit can be used as evidence only when the sufficient reasons the Court makes an order that any particular fact or facts may be proved by affidavit. Under Rule 2, such an order is not necessary, if the code provides that facts averred in the application may be proved by affidavit evidence, the present application is one under Order XXXIX, Rule 1, and, therefore in terms of Order XXXIX, Rule 1, allegations made in the application may be proved by affidavit unless the Court otherwise directs because of the expression ''otherwise'' occurring in order XXXIX, Rule 1.

The question which arises for consideration is whether the order of refusal to allow the petitioner to cross-examine the plaintiff- deponent is illegal, on the facts and in the circumstances of the case.

8.The purpose of cross-examination is to challenge the allegations made in the affidavit the order for attendance for cross-examination of the deponent of an affidavit is the discretion of the Court. However, the power is to be exercised judiciously and not arbitrarily. The attendance of the deponent would not ordinarily be made less the Court is of the opinion that in the interest of the justice such a course is necessary, as the adverse party may challenge the allegations in affidavit by a counter- affidavit in such case. In the present case,the defendants have set up counter- claim and have also made a separate application for injunction cross-examine the deponent on the ground stated above. The discretion exercised should not be interfered with unless the finding of the Court below is perverse or has been made in flagrant violation of the fundamental principles of law. I do not find any such arbitrary exercise of power. Accordingly, the petition is dismissed. No costs.