P.N.Karuppa Gounder vs Karuppayal on 16 October, 2012

[Cites 10, Cited by 5]

Madras High Court

P.N.Karuppa Gounder vs Karuppayal on 16 October, 2012

2. The plaintiff filed the suit for declaration and injunction. The defendants were set ex parte and the third defendant filed an application under section 5 of the Limitation Act to condone the delay in filing petition to set aside the ex parte decree and in that application, the revision petitioner/plaintiff filed petition under Order XIX Rule 2 to cross-examine the third defendant viz., the third respondent herein and that application was dismissed and aggrieved by the same, this revision is filed.

3. Mr.N.Manokaran, learned counsel for the revision petitioner submitted that the third defendant filed the application to condone the delay stating that she was suffering from jaundice and to disprove her claim, she has to be cross-examined and for that purpose, the application was filed and under Order XIX Rules 1 and 2, the court has got power to allow the application and that power was not properly exercised.

4. I am unable to accept the contention of the learned counsel for the revision petitioner. Order XIX Rule 19 of the Code of Civil Procedure deals with affidavits. Order XIX Rule 1 deals with the power of the court to direct any party to prove any particular fact by affidavit or affidavit of any witness may be read at the hearing and if the party desires the production of a witness for cross-examination and when such witness can be produced, the court should not allow the party to give evidence by affidavit. Order XIX Rule 2 deals with the power of the court to order the attendance for cross-examination of the deponent who gave evidence by affidavit upon any application.

5. In the judgment in MARNEEDI SATYAM v. VENKATASWAMI (AIR(36) 1949 MADRAS 689) it has been held that "Though the Evidence Act is not applicable to affidavits, it does not mean that any affidavit of any person can go in as evidence 'proprio vigore' without necessity for him to enter the witness box."

In that judgment, the learned Judge observes that affidavits are not evidence except (a) where there is an agreement between the parties that evidence can be taken by affidavit, or (b) where under O.19, R.1, Civil P.C., there is an order of the Court that particular facts may be proved by an affidavit or that the affidavit of any witness may be read at the hearing.

6. The Honourable Supreme Court in the judgment in SUDHA DEVI v. M.P.NARAYANAN ((1988) 3 SCC 366) held as follows:-

"... affidavits are not included in the definition of 'evidence' in Section 3 of the Evidence Act and can be used as evidence only if for sufficient reason court passes an order under Order 19, Rule 1 or 2 of the Code of Civil Procedure."

7. Our High Court held in KANNAMMAL v. BAGYAMMAL (1998 (I) CTC 280) that the petition under Order XIX Rule 2 of the Code of Civil Procedure cannot be maintained when an affidavit is filed only in support of the application and not as evidence as contemplated under Order XIX Rule 2. This has been elaborately dealt with by the learned Judge in the judgment in SREE RAMAVILAS SPINNING AND WEAVING MILLS (P) LTD. v. VIRUDHUNAGAR TEXTILES (2011 (1) MWN (CIVIL) 781) as follows:-

"It is an everlasting principle of law that an Affidavit can be termed to be an evidence within the ambit of Section 3 of the Indian Evidence Act only in those cases, where the same is filed at the instance or under the direction of the Court or law, specifically permits for proof of anything by Affidavit. To put it in short, Affidavit can be construed as an evidence under Section 3 of the Indian Evidence Act, if the Court has directed any party to a proceeding to file the same or if law insists to prove a fact by way of filing an Affidavit. If the said circumstance are in existence, the Court can invoke the provisions of Order 19, Rules 1 and 2 of the Code of Civil Procedure 1908 so as to enable the Respondent in any Petition to make cross-examination to the deponent of the Affidavit concerned."

8. In the judgment in SMT.SUDHA AND ANOTHER v. MANMOHAN AND OTHERS (AIR 1996 RAJASTHAN 59) it is held as follows:-

"The order for attendance of deponent of the affidavit for cross-examination, is absolute discretion of the Courts-below. It is true that absolute discretion means not arbitrary but judicious discretion having justice oriented approach in summoning the deponent of an affidavit for cross-examination. Order for attendance of the deponent for cross-examination would not be ordinarily be made unless the court is satisfied and convinced that application for summoning the deponent for cross-examination is bona fide and summoning of the deponent for cross-examination is necessary in the interest of justice. Unless both the conditions co-exist the Subordinate Courts have no jurisdiction to summon a deponent for cross-examination under Order 19, Rule 2, C.P.C."

9. In the judgment in LALITA v. CIVIL JUDGE (JR. DIV.), UDAIPUR CITY (SOUTH) AND OTHERS (AIR 2005 RAJASTHAN 293), it is held as follows:-

"The Rule 2 of Order 19, CPC clearly provides that the Court enjoined a power to order permitting the cross-examination of the deponent upon the application submitted by the party. Therefore, when the executing Court decides to decide the matter on the basis of the affidavit that does not mean that power of the executing Court under Rule 2 of Order 19, CPC has been taken away, expressly, impliedly or by interpreting any of the judgment relied upon by learned counsel for the respondent. At this stage, it may be emphasized that it is for the court to decide whether in the facts of the case, the cross-examination be allowed or not and this discretion should be exercised judicially."

10. Therefore, having regard to the judgment of our High Court when an affidavit is filed in support of an application, either party cannot invoke Order XIX Rule 2 to call upon the deponent to make himself available for cross-examination as the affidavit is not filed as evidence. The 'evidence' is defined in the Evidence Act as follows:-

" 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;

(2) all documents including Electronic records produced for the inspection of the Court, such documents are called documentary evidence."

11. Therefore, as per the judgment of the Honourable Supreme Court rendered in (1988) 3 SCC 366, affidavits are not included in the definition of evidence. Further, in the judgment of the Rajasthan High Court, it has been stated that the party has to make out a case for the exercise of that power by the court and absolute discretion is vested with the court either to allow it or reject the same. Further, a reading of Order XIX Rule 2 of the Code of Civil Procedure makes it clear that when any evidence is given by affidavit, the court may at the instance of either party order the attendance for cross examination of the deponent. Therefore, in the absence of any evidence given in the form of affidavit filed in support of an application, it is not in the nature of evidence and the court has no discretion to permit the cross-examination of the deponent at the instance of either party.

12. In this case, it is for the third respondent to prove her illness by satisfactory evidence and when the respondent is not able to prove with sufficient cause for condoning the delay, the application for condoning the delay will be dismissed and it is not necessary for the revision petitioner to disprove the cause of the respondent. Hence, the below has rightly dismissed the application and I do not find any infirmity in the order of the court below.

In the result, the civil revision petition is dismissed. The connected miscellaneous petition is also dismissed.

ssk.

1. The III Additional District and Sessions Judge, Gobichettiapalayam

2. The Record Keeper, V.R. Section, High Court, Chennai

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