Madras High Court
V.Baby vs Sekar on 2 December, 2014
Author: K.Ravichandrabaabu
Bench: K.Ravichandrabaabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.12.2014 CORAM: THE HONBLE MR. JUSTICE K.RAVICHANDRABAABU C.R.P.(PD).No.2826 of 2014 & M.P.No.1 of 2014 V.Baby .. Petitioner/Respondent/Petitioner /Plaintiff -vs- 1.Sekar 2.Sundar .. Respondents/Petitioners/Respondents /Defendants PRAYER :- Revision Petition filed under Article 227 of the Constitution of India, against the order dated 01.04.2014 passed in I.A.No.219 of 2014 in I.A.No.175 of 2014 in O.S.No.472 of 2014 on the file of the First Additional District Munsif, Puducherry. For Petitioner : Mr.S.Subbiah For Respondents : Mr.M.Govindarajan for Mr.G.Padmanaban, for R1 and R2 O R D E R
The petitioner is the plaintiff and the respondents are the defendants in O.S.No.472 of 2014 pending on the file of the I Additional District Munsif, Puducherry.
2. The petitioner filed the said suit for permanent injunction restraining the defendants from disturbing his peaceful possession and enjoyment of the suit property. Pending suit, the plaintiff filed I.A.No.175 of 2014 seeking for temporary injunction under Order 39 Rule 1 and 2 CPC. In the said application, the defendants filed another application in I.A.No.219 of 2014 under Order 19 Rule 2 CPC to direct the plaintiff to attend the Court for cross-examination. It is their contention that the affidavit filed in support of the application seeking for interim injunction has to be construed as an affidavit filed under Order 19 Rule 2 CPC and therefore, the plaintiff should be directed to attend the Court for cross-examination.
3. The Trial Court allowed the said application by holding that unless the deponent of the affidavit is exempted from personal appearance in the Court, the Court can direct such person to attend the Court for cross-examination.
4. Mr.S.Subbiah, learned counsel appearing for the petitioner submitted that the affidavit filed in support of the application seeking for temporary injunction is not an affidavit as referred under Order 19 Rule 2 CPC and therefore, the plaintiff cannot be compelled to submit himself for cross-examination by the defendants. He further submitted that the plaintiff has not filed any proof affidavit as witness in support of the said application and therefore, the question of cross-examining the plaintiff would not arise.
5. In support of his submission, the learned counsel relied on the decision of the Hon'ble Supreme Court reported in (1988) 3 Supreme Court Cases 366, Sudha Devi v. M.P.Narayanan and Others and the decision of the learned Single Judge of this Court reported in 2014 (4) CTC 315, K.Rajagopalan v. Gnanapandithan.
6. Per contra, Mr.Govindarajan, learned counsel appearing for the respondents submitted that the plaintiff seeking for interim injunction by filing an application under Order 39 Rule 1 and 2 CPC, having filed an affidavit in support of such application is bound to submit himself for cross-examination, as such affidavit has to be construed as an affidavit as contemplated under Order 19 Rule 2 CPC.
7. Heard the learned counsels appearing in either sides and perused the materials placed before this Court.
8. The point for consideration in this Civil Revision Petition is whether the affidavit filed in support of interim application, in this case for seeking interim injunction, has to be construed as an affidavit of the deponent as contemplated under Order 19 Rule 2 CPC. For proper appreciation of the issue involved in this case, the relevant provision under Order 19 Rule 1 and 2 CPC are extracted here under:
ORDER XIX AFFIDAVITS 1 . Power to order any point to be proved 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 bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit.
2 . 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 of 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.
While considering the scope of Order 19 Rule 1 CPC, it is seen that any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit. Rule 2 deals with the power of the Court to order attendance of such deponent for cross-examination. A careful perusal of the said provision would show that an evidence may be given by affidavit upon an application and such affidavit is the proof affidavit and has to be treated as examination in chief, so that such deponent of the proof affidavit may be ordered by the Court to be present for cross-examination by the other side.
9. In other words, an affidavit referred to under Order 19 Rule 2 CPC is certainly not the affidavit filed in support of the application, but it means only the proof affidavit of the witness, who is produced by the plaintiff/defendant in support of their respective claim.
10. At this juncture, it is useful to refer to the decision of the Hon'ble Apex Court reported in (1988) 3 Supreme Court Cases 366, Sudha Devi v. M.P.Narayanan and Others, wherein at paragraph 4, it has been observed as follows:
4. .....Besides, affidavits are not included in the definition of 'evidence' in s. 3 of the Evidence Act and can be used as evidence only if for sufficient reason court passes an order under Order XIX, Rules 1 or 2 of the Code of Civil Procedure...
11. The very same issue was already considered by this Court in the decision reported in 2014 (4) CTC 315, K.Rajagopalan v. Gnanapandithan, wherein at paragraphs 12 to 15, it has been observed as follows:
12. The next point that has to be decided is whether the affidavit filed in support of the petition is not an evidence?
13. At this juncture, it is appropriate to consider the submissions made by the learned counsel for the petitioner that the affidavit filed in support of the petition is not an evidence and the decisions relied on by him in that regard.
14.1. In the decision reported in 2013 (1) MWN (Civil) 425, P.N.Karuppa Gounder v. Karuppayal and others, it was held that 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. It is appropriate to incorporate paragraph 11 of the said decision:
11. Therefore, as per the judgment of the Honourable Supreme Court rendered in (1988) 3 SCC 366, affidavitsare 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. 14.2. In the decision reported in 2011 (1) MWN (Civil) 781, Sree Ramavilas Spinning and Weaving Mills (P) Ltd., v. Virudhunagar Textiles, it was held that the 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. It is appropriate to incorporate paragraphs 8 and 11 of the said decision:
8. 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 XIX Rule 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.
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11. It is an admitted fact that the present petition has been filed in I.A.No.130 of 2005 under Order XIX Rule 1 and 2 of the Code of Civil Procedure, 1908 so as to permit the revision petitioners to make cross examination to the deponent of affidavit filed in I.A.No.23 of 2004 and the first appellate Court should restrict its order only with reference to relevant provision of law. In fact the appellate Court has given unnecessary and also supernumerary observations as well as findings and the first appellate Court is directed not to observe the same in disposing Appeal Suit No.15 of 2003. 14.3 In the decision reported in 2012 (6) CTC 64, S.Karuppannan and another v. N.Chinnappan and others, it was held that 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. It is appropriate to incorporate paragraphs 4, 5 and 11 of the said decision.
4. I am unable to accept the contention of the learned counsel for the revision petitioners. 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 observed 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.
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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.
15. In the above decisions, it was clearly stated that the affidavit filed in support of the petition is not an evidence. In such circumstances, the respondent/tenant is not entitled to file an application seeking permission to cross examine the witness, since the affidavit filed in support of the petition filed under Section 11(4) of the Act is not an evidence as contemplated under Section 3 of the Indian Evidence Act. A perusal of the above said decision would show that the learned Single Judge has in fact referred to the three other decisions of this Court in support of her conclusion to hold that the affidavit filed in support of the petition is not an evidence. Therefore, the affidavit filed in support of the application is only a statement of fact which itself is not an evidence. The applicant, if he chooses, has to prove such statement of fact by letting in evidence and such evidence may be by proof affidavit, as contemplated under Order 19 Rules 1 & 2 CPC. Only when such proof affidavit is filed, the other side can seek for cross-examination of the deponent of such proof affidavit. Otherwise, it cannot be done.
12. Considering all the above said facts and circumstances and by following the decisions referred to supra, I am of the view that the order impugned herein cannot be sustained and the petitioner in this Civil Revision Petition is entitled to succeed. Accordingly, the Civil Revision Petition stands allowed and the order impugned in this Civil Revision Petition is set aside. Consequently, connected miscellaneous petition is closed. No costs.
02.12.2014 pgp Index : Yes Internet : Yes To I Additional District Munsif, Puducherry K.RAVICHANDRABAABU., J.
pgp C.R.P.(PD).No.2826 of 2014 Dated : 02.12.2014