Gauhati High Court
Ramji Singh vs M/S. Asmi Commercials Pvt. Ltd. & Anr on 16 August, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
C.R.P.(I/O) NO. 141/2016
Sri Ramji Singh .....Petitioner
-Versus-
M/s ASMI Commercials Pvt. Ltd. And another ..Respondents
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA Advocates for the Petitioner : Mr. SP Roy, Mr. AK Rai, Mr. AC Roy, Ms. A. Agarwal, Advocates Advocates for the Respondents : Mr. D. Mozumdar, Mr. Mr. R. Islam, Advs.
Date of hearing : 03.08.2017
Date of judgment : 16.08.2017
JUDGEMENT & ORDER (CAV)
Heard Mr. SP Roy, the learned counsel for the petitioner as well as Mr. Dilip Mozumdar, the learned Senior Counsel appearing for the respondents.
CRP(I/O) No. 141/2016 Page 1 of 102) By filing this application under Article 227 of the Constitution of India , the petitioner has challenged the order dated 4.11.2016 passed by the Court of the learned Civil Judge, No.2, Kamrup (Metropolitan), Guwahati in Misc. (J) Case No.52/2015 arising out of T.S. 53/2015. By the said order the petition No. 2337/16 dated 30.05.2016, filed by the petitioner- plaintiff under Order XIX Rule 2 CPC was dismissed.
3) A very lengthy argument was advanced by the both the learned counsel for the petitioner on the matter, which is otherwise a very minor issue involved in the case. The point involved is whether under the facts and circumstances of the case, it was incumbent on the part of the learned trial court to call for a deponent filing affidavit in support of written objection filed in injunction application to face cross examination by the petitioner- plaintiff.
4) The truncated facts, bereft of unnecessary particulars is that the petitioner herein had entered into an agreement with the respondents by virtue of which the respondents were to construct a multistoried multi- purpose building on the land of the petitioner. After substantial constructions had come up, disputes arose between the petitioner and the respondents. Hence, the petitioner instituted a suit for declaration, injunction, recovery of khas possession and other reliefs, which was registered as T.S No. 53/2015, and the same is pending for adjudication before the Court of the learned Civil Judge No.2, Kamrup (Metropolitan), Guwahati. In connection with the suit, the petitioner has also filed a separate application for grant of temporary injunction, and the same was registered as Misc.(J) Case No.52/2015. The respondents herein have filed their written objection in the said misc. case, which was supported by an affidavit.
CRP(I/O) No. 141/2016 Page 2 of 105) Alleging that incorrect and false statement were made in the said written objection, the petitioner filed an application before the learned trial court under Order XIX Rule 2 read with Section 151 CPC, being petition No. 2337/16 dated 30.05.2016, praying for summoning the deponent who has sworn the affidavit in support of the written objection filed in Misc. (J) Case No.52/2015. Upon hearing the learned counsel for the parties, the learned trial court by an order dated 04.11.2016, impugned herein, was pleased to reject the said application, inter-alia, on the ground that the affidavit in support of the written objection cannot be treated as a testimony.
6) The learned counsel for the petitioner, by extensively quoting the various statements made in the written objection filed by the respondents in Misc.(J) Case No.52/2015, and by quoting the various provisions of law and by quoting from various case law citations, it has been projected that the learned trial court had failed to consider the submissions advanced by the learned counsel for the petitioners and the petition was rejected in a mechanical manner, without assigning any reasons. By reading out various statements made in the written objection, it has been submitted that false statements can only be exposed by permitting the petitioner to cross-examine the deponent who had sworn the affidavit. It is also submitted that the person who had sworn the affidavit in support of the written objection of the respondents did not file any copy of the Board resolution showing that he is authorized to swear such affidavit and to file such objection and, as such, it is submitted that these matters can only be thrashed out by cross-examination. Extensive argument has also been advanced to project the various alleged lapses and violations on the part of the respondents in fulfilling the terms of their agreement. In the opinion of this Court, it is absolutely not necessary to burden this judgment with the detailed arguments so advanced. The sum and CRP(I/O) No. 141/2016 Page 3 of 10 substance of the argument is that the impugned order was passed in a mechanical, biased and whimsical manner, for which the impugned order is liable to be set aside.
7) The learned counsel for the petitioner has relied on the following cases to project that the Courts have the power to summon the deponent of the affidavit for cross-examination and that where it is not possible for the Court to arrive at a definite conclusion on account of there being affidavit on one side containing allegation and on other side containing counter allegation, it would not only be desirable, but in the interest of justice the duty is also of the Court to summon a deponent for cross examination in order to arrive at a truth. The cases cited are:
a. Ramesh Kumar vs. Kesho Ram, AIR 1992 SC 700; b. The Barium Chemicals Ltd. & ors. Vs. Company Law Board and ors., AIR 1967 SC 295 (Constitution Bench);
c. Kandarpa Pathak and ors. Vs. Mono Kanta Baruah and ors, 2015 (4) GLT 1124;
d. Mubarak Hussain Vs. Subham Planners (P) Ltd., 2014 (4) GLR 198; e. Meera Bora Vs. Hiranath and others, 2011 (1) GLT 69; f. Rajeswar Rabha Vs. Khogen Chandra Kalita and ors., 1992 (1) GLR 334;
g. Matadin Mour Vs. Prahlad Kumar Mour, 1998 (2) GLR 221 (FB); h. Abdul Hameed Khan vs. Mujeed-Ul-Hasan and ors., AIR 1975 All
398.
8) Countering the said arguments, the learned Senior Counsel for the respondents, without disputing the law that the civil court does have power to call any deponent for cross examination, has submitted that in the present CRP(I/O) No. 141/2016 Page 4 of 10 case in hand the application for cross examination of the deponent who has filed the written objection in the injunction petition was not bonafide but the said provisions of law has been abused to cause delay in the disposal of the injunction application. It is submitted that an injunction application is envisaged to be ordinarily disposed of within 30 days under the provision of Rule 3A of Order XXXIX CPC. It is submitted that the learned trial court had passed the order of status quo in Misc.(J) Case No.52/2015 on 03.03.2015. On appearance by the respondent, the written objection in the said case was filed by the respondents on 17.03.2015. For several reasons, the matter was adjourned on various grounds. It is submitted that having exhausted all ways of postponing the injunction hearing, the petitioner had filed an application under Order XIX Rule 2 CPC on 30.03.2016. Ultimately, the injunction hearing got postponed and the said petition under Order XIX Rule 2 CPC was dismissed by the impugned order dated 04.11.2016. Thereafter, the present revision was filed and the application for injunction is still pending for disposal. In support of his argument, that if the application was not bona fide, the trial court was right in dismissing the said petition, the learned Senior Counsel has relied on the following cases:-
a. Ayaaubkhan Noorkhan Pathan Vs. State of Maharastra and ors., (2013) 4 SCC 465;
b. Ramesh Kumar Vs. Kesho Ram (supra) (para-9);
c. Nadella Estate Pvt. Ltd. Vs. Prema Ravindranath and ors., 2015 (3) ALD 468: 2014 0 Supreme(AP) 1436.
9) Having considered the arguments advanced by the learned counsels for both sides, this Court is of the view that it is too well settled that under the provisions of Order XIX Rule 2 CPC, the courts exercising ordinary civil jurisdiction has the power to summon a deponent of an affidavit for cross CRP(I/O) No. 141/2016 Page 5 of 10 examination. Moreover, in view of the language issued in the provisions of Order XXXIX Rule 1 CPC, the court has the power to accept proof of a fact by affidavit. Therefore, there is no dispute in the ratio of cases cited by the learned counsel for the petitioner.
10) However, in the facts as revealed in the present case in hand, the court has not yet desired to accept any affidavit as proof of any matter. In this context, it is to be remembered that the respondents herein are the Opp. Parties in Misc.(J) Case No.52/2015, they are not seeking to prove anything yet as they are not seeking any relief. But, it is the petitioner who is seeking an order of injunction and therefore, it is the petitioner who is first required to establish the existence of conditions required for the court to grant an order of ad-interim injunction.
11) A defendant, in a given circumstances, is permitted to take contradictory stand like for example, the defendant may make an attempt to prove his title over a disputed land and yet take a stand that by lapse of period of limitation, he has perfected his right over the suit land. In this context, it would be relevant to refer to paragraph 18 of the case of Baldev Singh and others Vs. Manohar Singh and Anr., (2007) 5 SCC 602, wherein the Hon'ble Supreme Court of India as stated as follows:-
"18. This being the position, we are therefore of the view that inconsistent pleas can be raised by defendants in the written statement although the same may not be permissible in the case of plaint. In the case of M/s. Modi Spinning and Weaving Mills Co.Ltd. & Anr. Vs. M/s. Ladha Ram & Co. [(1976) 4 SCC 320], this principle has been enunciated by this Court in which it has been clearly laid down that inconsistent or alternative pleas can be made in the written statement. Accordingly, the High Court and the Trial Court had gone wrong in holding that CRP(I/O) No. 141/2016 Page 6 of 10 defendants/appellants are not allowed to take inconsistent pleas in their defence."
12) This Court finds force in the arguments advanced by the learned counsel for the respondents that an injunction application is required to be disposed of within a period of 1 month as per the provisions of Order XXXIX Rule 3A CPC. But in the present case in hand, the injunction petition has not been disposed of even after 2½ years.
13) The learned trial court while dismissing the petition for cross- examination has observed that the affidavit filed in support of the written objection by the Respondent No.2 herein is not in evidence but only a requirement in terms of Order VI Rule 15(4) CPC and such affidavit in support of written objection cannot be termed as evidence as envisaged under Order XVIII Rule 4 or Order XIX Rule 2 CPC. This Court has no reason to disagree with the said finding. Thus, it would be relevant at this stage to quote paragraph 17 and 18 of the case of Kandarpa Pathak (supra). The observations made by Hon'ble S. Shyam, J., in the opinion of this Court, reflects the correct position of law and that apart, the said decision is a binding precedent for this Court.
"17. In the case of Ashfaq Ahmed (Supra), the Allahabad High Court has observed that the dispute between the parties can be decided on the basis of affidavits and that if either party wants to cross examine the deponent of the affidavits filed by opposite party, that the prayer should not be refused without due regard to the provisions of the CPC. But the issue involved in the present case is quite different. Therefore, the decisions cited by Mr. Das would not have any application in the facts of the present case.
18. From an analysis of the various rules of Order XIX CPC it is apparent that Rule 2 of Order XIX adumbrates power of the court to permit cross- examination of the deponent / declarant only when the court requires a party to the proceeding to CRP(I/O) No. 141/2016 Page 7 of 10 prove any fact(s) by means of evidence tendered on affidavit and pursuant thereto, some evidence is brought on record by means of affidavit to prove such fact. The underlying object of the provision is to permit the opposite side an opportunity to impeach such evidence introduced on affidavit and the same is in conformity with the principle underlying section 138 of the Evidence Act, 1872. Order XIX Rule 2, therefore, cannot be invoked in a routine manner to cross- examine the deponent of each and every affidavit furnished in support of an application filed under the code. What must also be borne in mind is that if a request under order XIX Rule 2 CPC for cross- examination of the deponent of the affidavit is made by a party, the court will also have to arrive at a satisfaction as regards the bona fide of such prayer before allowing the same."
14) In the facts of the present case, as well as under the provisions of Order XXXIX Rule 1 CPC, the respondent- Opp. Party has nothing to prove. The petitioner has to satisfy the court that the condition precedent for granting injunction are present in the case and if the court is satisfied that it is a fit case, it has the power to pass such order as it may deem fit. So, if the petitioner can successfully demonstrate that the ingredients required for grant of injunction is present, a mere probability that the respondent has allegedly made wrong or false statement in his written objection, the court has the power to chaff-out bran from the rice. It is a well settled law that the findings recorded while deciding a case of ad-interim injunction does not get the force of a decree and therefore, even if an ad-interim injunction is refused in a misc. case, the court would still be acting within its jurisdiction to grant the relief of permanent injunction while decreeing the suit. Therefore, unless the court does not require any specific point to be proved by affidavit, all affidavits filed in support of each and every plaint and a miscellaneous proceeding cannot be assumed to be a point proved by affidavit. But no straight jacket formula can be laid down in this regard and each case would have to be decided on its unique facts. In the present case, the learned trial CRP(I/O) No. 141/2016 Page 8 of 10 court is right in not treating the affidavit filed in support of written objection by the respondents as an 'evidence'.
15) Moreover, in the present case, not only the court did not require any point to be proved by affidavit under Order XXXIX Rule 1 CPC, also the deponent appearing on behalf of the respondent was not asked to give evidence by affidavit as required under Order XIX Rule 2(1) CPC. Therefore, following the ratio of case of Kandarpa Pathak (supra), this Court is not inclined to accept the argument advanced by the learned counsel for the petitioner that the affidavit filed in support of written objection to the petition under Order XXXIX Rule 1 & 2 is to be treated as an 'evidence' because under the provisions of Order XXXIX Rule 1, it is the burden of the petitioner to demonstrate that his plea is sustainable for grant of injunction.
16) In the opinion of this Court, a mini trial at each stage by cross examining witness in each stage of the suit is nothing but an abuse of the process of law. The delay of 2½ years in presenting the application for cross- examining the respondent No.2/ deponent is held not to be bonafide.
17) Having arrived at the aforesaid opinion, this Court does not find any infirmity in the impugned order dated 04.11.2016, passed by the learned Civil Judge No.2, Kamrup (Metropolitan), Guwahati in Misc. (J) Case No. 52/2015 by which petition No.2337/16 dated 30.05.2016 was rejected.
18) Accordingly, this revision stands dismissed. Parties are left to bear their own costs.
CRP(I/O) No. 141/2016 Page 9 of 1019) Both the parties, who are duly represented by the learned counsels herein, are directed to appear before the learned Civil Judge No.2, Kamrup (Metropolitan), Guwahati on 31.08.2017, without any further notice of appearance, and by producing a certified copy of this order, shall seek further instruction from the said learned court.
20) Needless to say that the said learned court would make an attempt to hear the injunction application preferably within a period of 2 weeks thereafter and expeditiously dispose of the application in accordance with law.
JUDGE MKS CRP(I/O) No. 141/2016 Page 10 of 10